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THE  ASSASSINATION 


PRESIDENT  LINCOLN 


AND    THE 


TRIAL  OF  THE  CONSPIRATORS 


DAVID  E.  HEROLD, 
MARY  E.  SURRATT, 
LEWIS  PAYNE, 
GEORGE  A.  ATZERODT, 


EDWARD  SPANGLER, 
SAMUEL  A.  MUDD, 
SAMUEL  ARNOLD, 
MICHAEL  O'LAUGHLIN. 


Containing  the  Orders  convening  the  Commission ; 
Rules  for  its  guidance  ;  Pleas  of  the  accused  to  the  Juris 
diction  of  the  Commission,  and  for  Severance  of  Trial ; 
Testimony  in  full  concerning  the  Assassination,  and 
attending  circumstances  ;  Flight,  pursuit  and  capture  of 
John  "Wilkcs  Booth ;  Attempted  Assassination  of  Hon. 
W.  II.  Seward,  Secretary  of  State.  Official  Documents 
and  Testimony  relating  to  the  following  plots :  The 
Abduction  of  the  President  and  Cabinet,  and  carrying 
them  to  Richmond  ;  The  Assassination  of  the  President 
and  Cabinet ;  The  Murder  of  President  Lincoln  by  pres 
ents  of  infected  clothing ;  The  introduction  of  pestilence 
into  Northern  cities  by  clothing  infected  with  Yellow 
Fever  and  Small  Pox  ;  Starvation  and  murder  of  Union 


prisoners  in  Southern  prisons ;  Attempted  burning  of 
New  York  and  other  Northern  cities ;  Poisoning  the 
water  of  the  Croton  Reservoir,  New  York ;  Raid  on  St. 
Albans ;  Contemplated  raids  on  Buffalo,  Ogdensburg, 
etc. ;  Burning  of  Steamboats  on  Western  rivers,  Govern 
ment  Warehouses,  Hospitals,  etc. ;  Complicity  of  Jeffer 
son  Davis,  Judah  P.  Benjamin,  Jacob  Thompson,  George 
N.  Sanders,  Beverley  Tucker,  C.  C.  Clay,  etc. ;  Jacob 
Thompson's  banking  account  in  Canada  ;  The  mining  of 
Libby  Prison,  and  preparations  to  blow  it  up  ;  The  "dis 
organization  of  the  North"  by  a  system  of  terrorism 
and  infernal  plots  ;  Arguments  of  Counsel  for  the 
Accused;  Reply  of  Hon.  J.  A.  Bingham,  Special  Judge 
Advocate;  Findings  and  Sentences  of  the  Accused,  etc. 


COMPILED  AND  ARRANGED  BY  BENN  PITMAN, 


RECORDER   TO    THE   COMMISSION. 


OF 


PUBLISHERS: 

MOORE,   WILSTACH  &  BALDWIN, 

25  WEST  FOURTH  STREET,  CINCINNATI. 

NEW  YORK,  60  WALKER  STREET. 

1865. 


Ki 


Entered  according  to  Act  of  Congress,  in  the  year  1865, 

BY  MOORE,  WILSTACH  &  BALDWIN, 
In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  tho  Southern  District  of  Ohio. 


APPROVAL  OF  THE  SECRETARY  OF  WAR,  ETC. 


MILITARY  COMMISSION,  PENITENTIAKY,  WASHINGTON,  D.  G.,     1 

Tuesday,  June  20,  1865.         / 
;aio.  GEN.  JOSEPH  HOLT,  Judge  Advocate  General: 

GENERAL — To  satisfy  the  present  public  desire,  and  for  future  use  and  reference,  it 
s  certainly  desirable  that  an  authentic  record  of  the  trial  of  the  assassins  of  the 
late  President,  as  developed  in  the  proceedings  before  the  Military  Commission,  should 
be  published:  such  record  to  include  the  testimony,  documents  introduced  in  evidence, 
discussion  of  points  of  law  raised  during  the  trial,  the  addresses  of  the  counsel  for  the 
accused,  the  reply  of  the  Special  Judge  Advocate,  and  the  findings  and  sentences. 

Messrs.  Moore,  Wilstach  &  Baldwin,  publishers,  of  Cincinnati  and  New  York,  are 
willing  to  publish  the  proceedings  in  respectable  book  shape,  and  I  will  arrange  and 
compile,  on  receiving  your  approval. 

I  respectfully  refer  to  the  printed  work,  "THE  INDIANAPOLIS  TREASON  TRIALS,"  as  an 
indication  that  my  part  of  the  work  will  be  performed  with  faithfulness  and  care. 

Very  respectfully,  your  obedient  servant,  BENN  PITMAN. 

Recorder  to  Commission. 
Indorsed  and  approved  by — 

DAVID  HUNTER,  Maj.  Gen.  U.  S.  Vols.  LEWIS  WALLACE,  Maj.  Gen.  U.  S.  Vols. 

AUGUST  V.  KAUTZ,  Brev.  Maj.  Gen.  U.  S.  Vola.  EGBERT  S.  FOSTER,  Brev.  Maj.  Gen.  U.  S.  Vols. 

ALBION  P.  HOWE.  Brig.  Gen.  U.  S.  Vols.  T.  M.  HARRIS,  Brig.  Gen.  U.  S.  Vols. 

JAMES  A.  EKIN,  Brev.  Brig.  Gen.  U.  S.  Vols.  C.  H.  TOMKINS,  Brev.  Col.  U.  S.  Army. 

DAVID  R.  CLENDENIN,  Lieut.  Col.  8th  Ills.  Cav.          JOHN  A.  BINGHAM,  Special  Judge  Advocate. 
H.  L.  BURNETT,  Brev.  Col.  and  Special  Judge  Advocate. 

BUREAU  OF  MILITARY  JUSTICE,  June  30,  1865. 

By  authority  of  the  Secretary  of  War,  the  publication  of  the  work  referred  to  in  the 
foregoing  letter,  will  be  permitted,  on  the  condition  that  it  be  made  without  cost  to  the 
Government,  and  that  it  be  prepared  and  issued  under  the  superintendence  of  Col. 
Burnett,  who  will  be  responsible  to  this  Bureau  for  its  strict  accuracy. 

J.  HOLT,  Judge  Advocate  General. 

JUDGE  ADVOCATE'S  OFFICE,  DEPARTMENT  OF  THE  OHIO,  ) 
CINCINNATI,  October  2,  1865.  j 

In  obedience  to  the  directions  of  the  Secretary  of  War,  through  the  Judge  Advocate 
General,  I  have  superintended  the  compilation  and  publication,  in  book  form,  of  the 
record  of  the  trial  of  the  conspirators  at  Washington,  for  the  assassination  of  the 
late  President,  Abraham  Lincoln,  and  the  attempted  assassination  of  the  Secretary  of 
State,  Mr.  Seward,  other  members  of  the  Cabinet,  and  Lieut.  Gen.  Grant,  and  hereby 
certify  to  its  faithfulness  and  accuracy.  H.  L.  BURNETT, 

Judge  Advocate  Dist.  of  Ohio,  and  Special  Judge  Advocate  of  the  Commission. 

THE  entire  testimony  adduced  at  the  trial  of  the  assassins  of  President  Lincoln  is 
contained  in  the  following  pages.  It  has  been  arranged  in  narrative  form,  to  avoid 
unnecessary  repetitions,  and  to  present  the  facts  testified  to  by  each  witness  in  a  concise 
and  consecutive  form.  The  phraseology  is  that  of  the  witness;  the  only  license  taken 
with  the  testimony  has  been  its  arrangement  in  historical  sequence,  both  as  to  generals 
and  particulars. 

Whenever  the  meaning  of  a  witness  was  doubtful,  or  an  evasive  answer  was  given,  or 
whenever  the  language  of  the  witness  admitted  of  a  double  interpretation,  or  of  no 
interpretation  at  all,  the  questions  of  counsel,  and  the  answers  of  the  witness,  have 
been  retained.  B.  P. 


Westmoreland  C.  H. 


TABLE  OF  CONTENTS. 


EXECUTIVE  ORDER Ordering  a  Military  Commission 

SPECIAL  ORDER  No.  211 Convening  Commission  to  meet  on  the  8th  of  May 

FIRST  SESSION Accused  without  counsel 

SECOND  SESSION Special  Order  No.  216;  Charge  and  Specification;  pleadii 

of  the  accused;  rules  of  proceeding 

THIRD  SESSION Counsel  introduced 

FOURTH  SESSION Pleas  to  Jurisdiction;  Pleas  for  Severance 


GENERAL  CONSPIRACY. 

RICHARD  MONTGOMERY Acquainted  with  Thompson,  Sanders,  Clay,  Cleary,  Tucker, 

Hqlcombe,  etc.,  in  Canada;  their  complicity  with  the  rebel 
chiefs  in  the  assassination;  firing  of  New  York;  raids  on 

St.  Albans,  Rochester,  Buffalo,  Ogdensburg,  etc 

Recalled Letter  from  C.  C.  Clay  to  J.  P.  Benjamin,  at  Richmond 

Recalled Time  required  to  reach  Washington  from  Montreal 

WILLIAM  H.  ROHRER Identified  the  handwriting  of  Clement  C.  Clay 

SANFORD  CONOVER Intimate  with  the  rebel  agents  in  Canada;  Booth  and  Sur- 

ratt  in  Canada;  Surratt  just  from  Richmond;  participa 
tion  in  the  assassination  plot ;  rebel  commissions  for  raid 
ers  ;  descent  on  Chicago;  release  of  rebel  prisoners 

Recalled Introduction  of  pestilence  into  the  States  by  infected  (.-loth- 
ing;  poisoning  of  the  Crotou  reservoir,  New  York;  assas 
sination  approved  at  Richmond 

Recalled Testimony  in  the  St.  Albans  case;  seized  in  Canada  and 

made  to  disavow  his  testimony  before  the  Commission 

NATHAN  AUSER Accompanied  Conover  to  Montreal;  corroborated  his  state 
ment  

JAMES  B.  MERRITT Intimate  with  rebels  in  Canada;  assassination  and  other 

plots  discussed  and  approved;  approval  of  rebel  chiefs  in 

Richmond 

Recalled In  Montreal  after  the  assassination;  rebels  burning  their 

papers 

GEORGE  B.  HUTCHINSON In  Montreal  with  Dr.  Merritt;  corroborated  his  statement... 

LIEUTENANT-GENERAL  U.  S.  GRANT Jacbb  Thompson  in  the  rebel  military  service;  extent  of  the 

Military  Department  of  Washington;  civil  courts  open 

SAMUEL  P.  JONES Assassination  discussed  by  rebel  soldiers  and  citizens 

HENRY  VON  STEINACKER Met  Booth  in  Virginia  after  the  battle  of  Gettysburg ;  assas 
sination  discussed  at  a  meeting  of  rebel  officers 

HOSEA  B.  CARTER Saw  Booth  with  the  rebel  clique  in  Canada 

JOHN  DEVENY Saw  Booth  in  Montreal  with  Sanders;  also  in  Washington  on 

the  14th  of  April,  and  at  the  theater 

WILLIAM  E.  WHEELER Saw  Booth  in  Montreal,  in  conversation  with  Sanders 

HENRY  FINEGAS Sanders  speaking  of  Booth  as  "  bossing  the  job" 

MRS.  MARY  HUDSPETH Letters  of  conspirators  found  by  her  in  New  York 

Letters  signed  "  Charles  Selby  "  and  "Leenea" 

HON.  CHARLES  A.  DANA Identified  the  above  letters  as  received  from  General  Dix 

Letter  from  General  Dix  accompanying  the  letters 

MAJOR  T.  T.  ECKERT Date  of  General  Butler  leaving  New  York,  November  14th.... 

SECRET  CIPHER  AND  KEY. 

LIEUTENANT  WILLIAM  H.  TERRY Secret  cipher  found  among  J.  W.  Booth's  effects 

WILLIAM  EATON Found  secret  cipher  in  Booth's  trunk  at  National  Hotel 

COLONEL  JOSEPH  H.  TAYLOR Received  the  same  from  Lieutenent  W.  H.  Terry 

HON.  C.  A.  DANA Found  secret  cipher-key  in  Benjamin's  office  at  Richmond.... 

MAJOR  T.  T.  ECKERT Secret  cipher  dispatches  from  rebels  in  Canada  to  Richmond. 

ASSASSINATION  CIPHER  LETTER. 

CHARLES  DUELL Letter  signed  "Number  Five;"  assassination  plot 

JAMES  FERGUSON Identified  the  letter  found  at  Morehead  City,  N.  C 

THE  "LON"  LETTER. 

CHARLES  DAWSON Letter  signed  "  Lon,"  addressed  to  "  Friend  Wilkes" 

ROBERT  PURDY Testified  to  facts  referred  to  in  the  "Lon"  letter 

PLOT  TO  CAPTURE. 

SAMUEL  KNAPP  CHESTER Booth's  confessions  to  Chester;  plot  to  capture  abandoned... 

BOOTH'S  OIL  SPECULATIONS. 

JOSEPH  H.  SIMONDS Investments  in,  but  no  profits  from,  oil  speculations 

JACOB  THOMPSON'S  BANK  ACCOUNT. 

ROBERT  ANSON  CAMPBELL Thompson's   account  with   tho    Ontario  Bank,    Montreal; 

Booth's  account 

BOOTH  AT  THE  NATIONAL  HOTEL. 

G.  W,  BUNKER Dates  of  Booth's  arrival  and  departure  at  National  Hotel.... 

JEFFERSON  DAVIS  AND  THE  ASSASSINATION. 

LEWIS  F.  BATES Receipt  of  telegram  by  Davis  announcing  tho  assassination. 

J.  C.  COURTNEY Identified  the  telegram  received  by  Davis  at  Bates's  House.... 

JAMES  E.  KUSSELL Testified  to  character  of  Lewis  F.  Bates 

(v) 


VI 


TABLE    OF    CONTENTS. 


WILLIAM  L.  CRANE Testified  to  character  of  Lewie  F.  Bates 

DANIEL  II.  WILCOX 

JULES  SOULE 

MAJOR  T.  T.  ECKERT L.  F.  Bates  brought  to  Washington  by  order  of  Sec'y  of  Wai 


PAGE 

47 

•17 


PLOT  TO  DESTROY  VESSELS,  BUILDINGS,  ETC. 


KEY.  W.  II .  RYDF 


Letter  from  W.  S.  Oldham  to  Jeff.  Davis;  proposition  for 
general  destruction  of   public  and   private   United  States 


property;  indorsed  by  Davis.. 
....  Iden""    " 


itified  handwriting  of  Jefferson  Davis 


JOHN  POTTS 

NATHAN  HICE 

JOSHUA  T.  OWEN As  to  Professor  McCullough,  referred  to  in  the  above  letter...' 

GENERAL  ALEXANDER  J.  HAMILTON As  to  W.  S.  Oldham,  writer  of  the  above  letter 


BURNING  OF  STEAMBOATS,  ETC. 

EDWARD  FRAZIEB Burning  of  U.  S.  transports,  bridges,  etc.,  and  payment  for 

>the  same,  by  J.  P.  Benjamin,  in  Confederate  gold 

CITY  POINT  EXPLOSION. 

GENERAL  T.  D.  TOWNSEND Paper    signed    "John   Maxwell,"  detailing   particulars   of 

torpedo  explosion 


MILLION  DOLLARS  FOR  ASSASSINATION. 

JOHN  CANTLIN G.  W.  Gayle  wants  one  million  dollars  for  assassination  pur 
poses  

W.  D.  GRAVES Identified  the  handwriting  of  G.  W.  Gayle 

PAPERS  FROM  THE  REBEL  ARCHIVES. 

(  Proposal  "to  rid  the  country  of  some  of  her  deadliest  ene- 

COLONEL  R.  B.  TREAT mies;"   referred,  by  direction  of  the  "President,"  to  the 

MAJOR  T.  T.  ECKKRT 4     Secretary  of  War;    from  the  archives  of  the  rebel  War 

FREDERICK  H.  HALL Department;  surrendered  by  General  Joseph  E.  Johnston 

(.     to  Major-General  Scliolield ,.  .  . 

LEWIS  W.  CHAMBERLAYNE Identified  the  handwriting  of  B.  W.  Harrison,  Private  Secre 
tary  to  Davis,  and  J.  A.  Campbell,  rebel  Assistant  Secre 
tary  of  War 


GEORGE  F.  EDMUNDS. 
HENRY  G.  EDSON 


COMMISSIONS  FOR  RAIDERS. 

Confederate  commissions  granted  to  raiders 

Threatened    raid"    from  Canada  on  Buffalo,   Detroit,   New 


COLONEL  MARTIN  BURKE. 


York,  etc 

PLOT  TO  BURN  NEW  YORK  CITY. 
Confession  of  Robert  C.  Kennedy 


INTRODUCTION  OF  PESTILENCE. 

GODFREY  JOSEPH  HTAMS Employed  by  Dr.  Blackburn;  details  of  operations 

W.  L.  WALL Received  and  sold  five  trunks  of  infected  clothing  in  Wash 
ington 

A.  BRENNER Clerk  to  Wall  &  Co. ;  forwarded  statement  of  account 

STARVATION  OF  UNION  PRISONERS. 

SALOME  MARSH At  Libby  Prison 

FREDERICK  MEMMERT At  Libby  Prison 

BENJAMIN  SWEERER At  Belle  Island 

WILLIAM  BALL At  Anderson ville 

CHARLES  SWEENAY At  Libby,  Belle  Island,  and  Andersonville 

JAMES  YOUNG At  Andersonville,  Charleston,  and  Florence 

LIEUTENANT  J.  L.  RIPPLE At  Andersonville 

MINING  OF  LIBBY  PRISON. 

LIEUTENANT  REUBEN  BARTLEY Torpedo  buried  under  the  center  of  the  prison 

ERASTUS  W.  Ross Placed  there  by  order  of  the  rebel  Secretary  of  War 

JOHN  LATOUCHE Major  Turner  to  fire  it  if  U.  S.  troops  came  to  Richmond 

THE  BEN.  WOOD  DRAFT. 

DANIEL  S.  EASTWOOD Draft  for  $25,000  from  Jacob  Thompson's  rebel  funds 

GEORGE  WILKES Identified  the  indorsement  of  Benjamin  Wood,  of  New  York. 

ABRAM  D.  RUSSEL Identified  the  handwriting  of  Benjamin  Wood 

DEFENSE. 

EDWARD  JOHNSON Discussion  on  the  admission  of  the  testimony  of  Johnson; 

impeaching  the  testimony  of  H.  Von  Steinacker 

OSCAR  HEINRICHS Impeaching  the  testimony  of  H.  Von  Steinacker 

H.  K.DOUGLAS "          

CIPHER  LETTER  "  NUMBER  FIVE." 
DISCUSSION On  rejecting  cipher  letter  "  Number  Five" 

ASSASSINATION  AND  ATTENDING  CIRCUMSTANCES. 

ROBERT  R.  JONES Clerk  at  the  Kirkwood  House;  Booth's  card  left 

WILLIAM  A.  BROWNING Identified  the  card  left  by  J.  Wilkes  Booth 

CHARLES  DAWSON Identified  the  handwriting  of  Booth 

THOMAS  L.  GARDINER Sale  of  one-eyed  horse  to  Booth 

BROOK  STABLER Of  Howard's  stable;  kept  Surratt's  horses 

WILLIAM  E.  CLEAVER Kept  stable;  one-eyed  horse  sold  to  Arnold 

JAMES  W.  PUMPHREY Kept  stable  ;  hired  horse  to  Booth  on  the  lith 

PETER  TALTAVUL Kept  restaurant ;  Booth  and  Herold  there  on  the  14th 

SERGEANT  DYE In  front  of  theater  on  night  of  the  14th 

JOHN  E.  BUCKINGHAM Door-keeper  at  Ford's  on  night  of  the  14th 

JOHN  F.  SLEICHMANN Assistant  property  man ;  at  theater  on  night  of  the  14th 

JOSEPH  BURROUGHS—  'PEANUTS" Held  Booth's  horse  in  the  alley  on  night  of  Mth 

Recalled Booth's  stable  in  rear  of  theater 

MARY  ANN  TURNER.. Lived  in-rear  of  theater ;  saw  Booth  and  Spangler  on  14th 

MARY  JANE  ANDERSON "        

JAMES  L.  MADDOX Property  man  at  Ford's  ;  reftted  stable  for  Booth 

JAMES  P.  FERGUSON At  theater  on  night  of  assassination 

JAMES  J.  GIFFOBD tftage  carpenter ;  present  on  night  of  the  llth 


TABLE   OF   CONTENTS. 


Vll 


CAPTAIN  THEO.  McGowAN Present  at  theater  on  night  of  the  14th 

MAJOR  IT.  R.  RATHBONE In  President's  box  on  the  14th;  stabbed  by  Booth 

WILLIAM  WITHERS,  JR Leader  of  orchestra;  onstage;  struck  at  by  Booth 

JOSEPH  B.  STEWART At  theater  on  the  14th  ;  pursued  Booth 

JOE  SIMMS On  the  stage  on  night  of  the  assassination 

Recalled Fitted  up  President's  box  on  afternoon  of  the  14th 

JOHN  MILES On  the  stage  on  night  of  the  assassination 

DR.  ROBERT  K.  STONE Attended  the  President  after  the  assassination 

WILLIAM  T.  KENT Found  the  pistol  in  the  President's  box 

ISAAC  JAQTJETTE Found  tho  wooden  bar  in  the  President's  box 

JUDGE  A.  B.  OLIN Visited  theater  on  the  Kith  ;  examined  President's  box,  etc.... 

DAVID  C.  REED Saw  John  II.  Surratt  in  Washington  on  the  14th 

J.  F.  CJYLE Statement  by  Booth,  said  to  have  been  left  for  publication  in 

the  National  Intelligencer 


PAGE 

78 
78 
79 

79 


PURSUIT  AND  CAPTURE  OF  BOOTH  AND  HEROLD. 


JOHN  FLETCHER Hired  a  horso  to  Herold ;  went  in  pursuit 

SERGEANT  SILAS  T.  COBB On  duty  at  Navy  Yard  bridge ;  stopped  Booth  and  Herold 

POLK  GARDINER Met  Booth  and  Herold  on  the  night  of  the  14th 

JOHN  M.  LLOYD Mrs.  Surratt's  visits  to  Surrattsville;    Booth  and   Herold 

there  on  the  night  of  the  assassination 

Recalled 

LIEUTENANT  ALEXANDER  LOVETT At  Dr.  Mudd's  on  18th  and  21st  of  April 

LIEUTENANT  D.  D.  DANA 

WILLIAM  WILLIAMS "    

SIMON  GAVACAN "    

JOSHUA  LLOYD "    

WILLIE  S.  JETT Met  Booth  and  Herold  at  the  Rappahannock  on  the  24th 

EVERTON  J.  CONGER At  Garrett's  barn ;  Booth's  death;  capture  of  Herold 

SERGEANT  BOSTON  CORBETT "      

CAPTAIN  EDWARD  P.  DOHERTY "      

SURGEON-GENERAL  J.  K.  BARNES Identification  of  Booth's  body 

C.  D.  HESS Manager  of  Grover's  Theater ;  Booth's  inquiries 

DEFENSE  OF  DAVID  E.  HEROLD. 

CAPTAIN  ELI  D.  EDMONDS Herold  in  Washington  on  the  20th  and  21st  of  February 

FRANCIS  S.  WALSH Character  of  Herold;  employed  him  as  clerk 

JAMES  NOKES Character  of  Herold 

\VILLIAM  H.  KEILOTZ Herold  at  home  in  February 

EMMA  HEROLD Herold  in  Washington  on  the  15th  and  19th  February 

MRS.  MARY  JENKINS Herold  in  Washington  on  the  18th  February 

MRS.  ELIZABETH  POTTS Herold  in  Washington  on  the  19th  and  20th  February 

DR.  CHARLES  W.  DAVIS Character  of  Herold  light  and  trifling , 

DR.  SAMUEL  A.  H.  McKiM Character  of  Herold 

EDWARD  SP ANGLER. 

JACOB  RITTERSPATJGH Lodged  at  the  same  boarding-house  as  Spangler 

Recalled At  theater  on  the  14th ;  first  to  pursue  Booth 

WILLIAM  EATON Arrested  Spangler  at  his  boarding-house 

CHARLES  H.  ROSCH Found  rope  in  Spangler's  carpet-bag 

JOHN  E.  BUCKINGHAM Door-keeper  at  Ford  s  Theater 

JOHN  F.  SLEICHMANN Assistant  property  man;  at  theater  on  the  14th 

JOSEPH  BURROUGHS—"  PEANUTS  " Received  Booth's  horse  from  Spangler  on  the  night  of  14th... 

Recalled Saw  Booth  and  Spangler  on  the  night  of  14th 

MARY  ANN  TURNER Saw  Booth  and  Spangler  on  the  night  of  14th 

MARY  JANE  ANDERSON Saw  Booth  and  Spangler  on  the  night  of  14th 

JAMES  L.  MADDOX Propertyman;  rented  stable  for  Booth 

JOSEPH  B.  STEWART Present  at  the  theater;  pursued  Booth ;  saw  Spangler 

JOE  SIMMS On  the  stage  on  the  night  of  the  assassination 

Recalled Fitted  up  the  President's  box  with  Spangler 

JOHN  MILES On  the  stage  on  the  night  of  the  assassination 

DEFENSE  OF  EDWARD  SPANGLER. 

C.  D.  HESS Manager  of  Grover's  Theater;  Booth's  inquiries 

H.  CLAY  FORD Treasurer  at  Ford's  Theater;  decorated  President's  box 

JAMES  R.  FORD Business   manager   of  Ford's  Theater;   present   when   the 

President's  messenger  engaged  the  box 

JOHN  T.  FORD Proprietor   of  Ford's   Theater;    Spangler's   duties   on   the 

night  of  the  14th;  Booth's  characteristics 

Recalled Character  of  Edward  Spangler 

JOSEPH  S.  SESSFORD Ticket-seller;  no  private  boxes  sold  on  the  14th 

WILLIAM  WITHERS,  JR Saw  Booth  rush  through  the  door  from  the  stage 

HENRY  M.  JAMES Position  of  Spangler  on  the  stage  on  the  14th 

J.  L.  DEBONAY Saw  Spangler  at  his  post  at  the  time  of  assassination 

Recalled Described  Booth's  exit  from  the  stage 

WILLIAM  R.  SMITH Saw  Booth's  exit;  pursued  by  Mr.  Stewart 

J.  P.  FERGUSON Saw  Booth's  exit ;  pursued  by  Mr.  Stewart 

JAMES  LAMB Use  of  rope  found  in  Spangler's  bag 

JACOB  RITTERSPAUGH Spangler's  remarks  at  the  time  of  assassination 

JAMES  LAMB  (recalled) Ritterspauglvs  version  of  Spangler's  remarks 

Louis  J.  CARLAND Respecting  Ritterspaugh  and  Spangler  after  the  assassination 

JAMES  J.  GIFFORD llitterspaugh's  statement;  use  of  Spangler's  rope 

THOMAS  J.  RAYBOLD The  locks  'on   the  boxes;    Booth's   occupying   box   at   the 

theater;  arrangement  of  box  on  the  14tl 

Recalled Condition  of  the  keepers  on  boxes  7  and  8.. 

HENRY  E.  MERUICK Engaging  box  No.  7 

JAMES  O'BRIEN Usher  at  Ford's  Theater 

JOSEPH  P.  K.  PLANT Examination  of  keepers  on  boxes  7  and  8.. 

G.  W.  BUNKER Gimlet  in  Booth's  trunk 

CHARLES  A.  BOIGI Boarded  at  the  same  house  as  Spangler I  112 

JOHN  GOENTHEB Boarded  with  Spangler |  112 


Vlll 


TABLE    OE    CONTENTS. 


MRS.  MARY  E.  SURRATT. 

JOHN  M.  LLOYD Mrs.  Surratt  at  Surrattsvillc  onjlth  ancH4th  March 

Louis  J.  WEICHMANN.'.'. ..'..'...' ("General  conspiracy;  complicity  of  Mrs.  Surratt,  Booth, 

Recalled -<  John  H.  (Surratt,  Atzerodt,  Mudd,  Herold,  Payne;  visit  to 

Recalled (  Canada  after  the  assassination 

A.  R.  RKEVES Identified  telegram  from  Booth  to  Weichmann 

Miss  HONORA  FITZPATRICK Booth,  Payne,  and  Atzerodt  at  Mrs.  Surratt's 

MRS.  EMMA  OFFUTT Mrs.  Surratt  at  Surrattsville;  J.  M.  Lloyd 

MAJOR  H.  W.  SMITH Arrest  of  Mrs.  Surratt  and  family  ;  Payne's  arrest 

R.  C.  MORGAN Arrest  of  Payne;  search  of  Mrs.  Surratt's  house 

W.  M.  WERMERSKIRCH "  '      

LIEUTENANT  JOHN  W.  DEMPSEY Photographs  of  rebel  chiefs ;  Booth's  portrait  concealed 

Recalled Identified  the  photograph  of  Booth 

DEFENSE  OF   MRS.  MARY  E.  SURRATT. 

GEORGE  COTTINGHAM Lloyd's  statement  after  his  arrest 

Recalled Conversation  with  Mr.  Aiken  (counsel)  as  to  Lloyd's  confes 
sion  

MRS.  EMMA  OFFUTT Correction  of  testimony  given  for  the  prosecution 

GEORGE  H.  CALVERT Identified  his  business  letter  to  Mrs.  Surratt 

BENNETT  F'.'GWYN'N."!'.'.'.!.'."!.'.'.'.'.''.'.!.....'...'.'  Received  from  Mrs.  Surratt  a  letter  for  Mr.  Notiieyl. .'..'.'. 

Recalled Identified  the  letter 

JOHN  [NOTHEY Owed  Mrs.  Surratt  money  on  purchase  of  land 

JOSEPH  T.  NOTT Lloyd's  bar-keeper ;  Lloyd  in  liquor  on  the  llth 

Recalled Conversation  with  Smoot  respecting  John  H.  Surratt 

ANDREW  KALLENBACH At  Lloyd's  house  when  Lloyd  was  arrested 

J.  Z.  JENKINS Mrs.  Surratt's  loyalty  and  kindness  to  Union  soldiers 

Recalled Respecting  his  own  loyalty 

RICHARD  SWEENEY Lloyd  drinking  with  him  on  the  14th 

.IAMKS  LUSBY Lloyd  very  drunk  on  the  14th 

J.  V.  PILES Respecting  the  loyalty  of  J.  Z.  Jenkins 

J.  C.  THOMPSON 

DR.  J.  H.  BLANFORD ,-.'. 

WILLIAM  P.  WOOD : 

-Miss  ANNA  E.  SURRATT Booth,  Atzerodt,  Payne,  at  Mrs.  Surratt  s;  owns  photo 
graphs 

Recalled Owns  card  with  the  motto  "Sic  semper  tyrannis;"  photo 
graphs  of  rebel  chiefs  a  gift  from  her  father 

Miss  HONORA  FITZPATRICK Purchased  photograph  of  Booth  with  Miss  Surratt 

Recalled Mrs.  Surratt's  eye-sight  defective 

MRS.  ELIZA  HOLAHAN Wood  (Payne),  Port  Tobacco  (Atzerodt),  and  Booth  at  Mrs. 

Surratt's  house;  Mrs.  Surratt's  eyesight  defective 

GEORGE  B.  WOODS Photographs  of  rebel  leaders  for  sale 

AUGUSTUS  S.  HOWELL Interviews  with  Weichmann;  journeys  to  Richmond 

Miss  ANNA  WARD Received  letters  from  John  H.  Surratt;  eyesight 

REV.  B.  F.  WIGET Mrs.  Surratt's  general  character  and  loyalty 

REV.  FRANCIS  E.  BOYLE 

REV.  CHARLES  H.  STONESTREET 

REV.  PETER  LANIHAN ••••• 

REV.  N.  D.  YOUNG (l  

JOHN  T.  HOXTON....    ....'.""""!!.!!."...!. .....'  Character  of  Mrs.  Surratt;  J.  Z.  Jenkins;  W.  A.  Evans 

WILLIAM  W    HOXTON Character  of  Mrs.  Surratt;  loyalty  of  J.  Z.  Jenkins 

RACHEL  SEMUS Character  of  Mrs.  Surratt;  defective  eyesight 

HENRY  HAWKINS Mrs.  Surratt's  kindness;  feeding  Government  horses 

DAVID  C.  REED John  H.  Surratt  in  Washington  on  the  14th  of  April 

TESTIMONY  IN  REBUTTAL. 

JOHN  RYAN Character  of  Louis  J.  Weichmann 

FRANK  STITH 

JAMES  P.  YOUNG |t  tt  

JOHN  T.AHSoTAHAN'V.V.V.V.V.V.V.'.!l»;.\"!r.'.'.'.  Booth,  Payne,  Atzerodt  at  Mrs.  Surratt's ;  went  to  Canada 

with  L.  J.  Weichmann  to  identify  John  H.  Surratt 

JAMES  McDEViTT Accompanied  L.  J.  Weichmann  to  Canada    

ANDREW  KALLENBACH Jenkins  threatened  if  he  testified  against  him  

F  L  SMOOT  ...  Disloyalty  of  Jenkins;  Joseph  T.  Nott  said  John  H.  Surratt 

knew  all  about  the  murder 

A.  V.  ROBY Disloyalty  of  J.  Z.  Jenkins 

DOHLEY  B.  ROBY ||  \\  |,      

JOHN  L.  THOMPSoV.V.V.V.V.V.V.'.V.'.'.'.'.'.'.!!!."!'.'.  Disloyalty  of  Mrs.  Surratt 

GEORGE  A.  ATZERODT. 

ROBERT  R.  JONES....  ...  Atzerodt  at  Kirkwood  House  on  the  14th  April.. 

JOHN  LEE  .  Contents  of  Atzerodt's  room  at  the  Kirkwood  House 

LYMAN  B.'SpBAGiJE."".!.""!""'.". Went  to  Atzerodt's  room  with  John  Lee 

COLONEL  W.  R.  NEVINS ~.  Atzerodt  inquired  respecting  \  ice-President  Johnson 

JOHN  FLETCHER Hired  horse  to  Atzerodt  on  the  14th  April        

WASHINGTON  BRISCOE Desired  to  sleep  with  him  on  night  of  the  lith 

JOHN  GREENAWALT Atzerodt  at  Penn.  House  on  night  of  14th 

JAMFS  WALKER  Atzerodt  at  Penn.  House  on  night  ot  14th 

LIEUTENANT  W.  R.  KEIM Roomed  witli  Atzennlt  jit  tho  Penn.  House 

JOHN  CALDWELL Loaned  Atzerodt,  S10  on  his  pistol 

WILLIAM  CLENDENIN Saw  Atzerodt's  knife  picked  up 

MARSHAL  JAMES  L.  McPiiAiL Atzerodt  told  where  he  threw  away  his  knife...    

HEZFKIAH  METZ Atzerodt  and  the  assassination  ot  General  Grant 

SFRGEANT  L.  W.  GEMMILI Arrested  Atzerodt  at  the  house  of  R  chter. •••••••••• 

MARCUS  P    NORTON  .  ..  AUerodt  and  O'Laughlm  with  Booth  at  National  Hotel 

Recalled'  '       ...'   Conversation  between  Booth  and  Atzerodt i 


TABLE    OF    CONTENTS. 


IX 

PAGE 


May  30. 

Jane  2. 
June  5. 
May  30. 
May  30. 
June  3. 
May  30. 
May  31. 
May  30. 
May  30. 
May  31. 
May  30. 
June  8. 
June  f>. 
May  30. 


May  19. 
May  19. 

May  19. 
May  19. 

May  19. 

May  26. 

May  19. 
May  22. 

May  20. 
May  20. 
May  19. 
May  19. 
May  19. 
May  19. 

May  19. 
May  19. 
May  17. 
May  18. 


DEFENSE  OF  GEORGE  A.  ATZERODT. 

CAPTAIN  FBANK  MONROE Atzerodt  in  his  charge  on  board  the  monitor 

DISCUSSION On  admitting  Atzerodt's  confession  in  his  defense 

MATTHEW  J.  POPE ,\ Atzerodt  went  to  his  stable  to  sell  a  horse 

JOHN  H.  BAKK Met  Atzerodt  at  Pope's  restaurant 

JAMES  KELLEHER Atzerodt  hired  a  small  bay  mare  on  14th  April 

SAMUEL  SMITH..* Bay  mare  returned  to  stable  about  11  o'clock 

LEONARD  J.  FARWELL At  Mr.  Johnson's  room  on  night  of  14th 

Miss  JANE  HEROLD Does  not  recognize  articles  found  at  Kirkwood  House 

F.  H.  DOOLEY Articles  found  at  Kirkwood  House 

SOMERSET  LEAMAN Atzerodt  at  house  of  Metz  on  Sunday,  16th  April 

JAMES  E.  LEAMAN Talk  about  assassination  of  Lincoln,  Seward,  ay>d  Grant 

MARTMAN  HICHTER Atzerodt  at  his  house  from  Sunday  till  Thursday 

SAMUEL  MCALLISTER Identified  Atzerodt's  pistol;  Atzerodt's  cowardice 

ALEXANDER  BRAWNER Atzerodt's  notorious  cowardice 

Louis  B.  HARKINS Atzerodt's  good  nature;  lacking  in  courage 

WASHINGTON  BRISCOE Atzerodt  remarkable  for  his  cowardice 


LEWIS  PAYNE. 

MRS.  MARTHA  MURRAY Payne  at  Herndon  House  up  to  April  14th 

WILLIAM  H.  BELL ».v At  Mr.  Seward's  house  on  night  of  14th;  identified  Payne  at 

General  Augur's  head-quarters 

Recalled Identified  the  clothes"  worn  by  Payne 

SERGEANT  GEORGE  F.  ROBINSON Attacked  in  Secretary  Seward's  room  ;  struggle  with  Payne; 

identified  hat  and  revolver  picked  up  in  the  bed-room 

Recalled Identified  Payne  in  the  clothes  worn  on  the  14th 

MAJOR  AUGUSTUS  H.  SEWARU Struggle  with  Payne  in  Mr.  Seward's  bed-room;  Frederick 

Seward  wounded  ;  identified  Payne,  and  hat  left  by  him 

SURGEON-GENERAL  J.  K.  BARNES Description  of  the  wounds  of  Mr.  Seward,  and  of  Mr.  Fred 
erick  Seward 

DR.  T.  S.  VERDI Saw  Mr.  Seward,  Mr.  Frederick  Seward,  Major  Seward, 

Sergeant  Robinson,  and  Mr.  Hanscll  after  Payne's  attack... 

ROBERT  NELSON Identified  the  knife  found  near  Mr.  Seward's  house 

DR.  JOHN  WILSON Identified  the  knife  found  by  Robert  Nelson 

THOMAS  PRICE Identified  blood-stained  coat  found  near  Washington 

COLONEL  H.  H.  WELLS Identified  the  clothing  and  boots  taken  from  Payne 

CHARLES  H.  ROSCH Identified  articles  taken  from  Payne  when  arrested 

SPENCER  M.  CLARK Discovered  the  ink-mark  on  the  boots  worn  by  Payne  to  be 

j.  w.  Booth ; ;. 

EDWARD  JORDAN Found  the  ink-mark  to  be  J.  W.  Booth 

STEPHEN  MARSH Had  no  doubt  the  name  was  J.  W.  Booth 

LIEUTENANT  JOHN  R.  TOFFEY Found  the  one-eyed  horse  on  morning  of  the  15th 

Recalled ,..  Identified  the  horse  at  the  Government  stables.... 


DEFENSE  OF  LEWIS  PAYNE. 

June  2.  Miss  MABGABET  BRANSON Payne  attentive  to  the  sick  after  the  battle  of  Gettysburg; 

boarded  at  her  mother's  house ;  discussion  on  introduction 
of  testimony  showing  Payne's  insanity 

June  2.       MARGARET  KAIGHN Payne's  conduct  at  Mrs.  Branson's 

Jun'e2.       DR.  CHARLES  H.  NICHOLS Causes  and  indications  of  insanity,  moral  and  mental 

June  13.      DR.  JAMES  C.  HALL Examined  Payne  with  regard  to  his  insanity 

JuneS.       JOHN  B.  HUBBARD Payne's  conversation  since  his  imprisonment 

JuneS.       'JoHN  E.  ROBERTS Payne  desired  to  die 

JuneS.        COLONEL  W.  H.  H.  McCALL Payne's  physical  condition 

June  12.  MBS.  LUCY  ANN  GBANT Saw  the  affray  in  which  Payne  saved  the  lives  of  Union  sol 
diers  ;  knew  him  as  Lieutenant  Powell 

June  12.      JOHN  GRANT Corroborated  his  wife's  statement 

IN  REBUTTAL. 

June  14.  |  SURGEON-GENERAL  J.  K.  BARNES Examined  Payne  with  reference  to  his  insanity 

June  14.      DR.  JAMES  C.  HALL 

June  14.      DR.  BASIL  MORRIS 

June  14.     ASSISTANT-SURGEON  GEORGE  L.  PORTER  

SAMUEL  A.  MUDD. 

May  16.  COLONEL  H.  H.  WELLS Dr.  Samuel  A.  Mudd's  statement  after  his  arrest 

May  25.  MARY  SIMMS Lived  at  Dr.  Mudd's;  rebels  hiding  in  woods 

May  25.  ELZEE  EGLENT Threats  of  sending  him  to  Richmond;  rebels  hiding 

May  25.  SYLVESTER  EGLENT Threats  of  sending  him  and  four  other  slaves  to  Richmond  to 

build  batteries 

May  25.  MELVINA  WASHINGTON Dr.  Mudd's  talk  of  President  Lincoln  ;  sheltering  rebels 

May  25.  MILO  SIMMS Sheltering  rebels ;  took  charge  of  John  Surratt's  horse 

May  25.  RACHEL  SPENCER Rebels  in  the  pines ;  fed  by  Dr.  Mudd 

May  25.  WILLIAM  MARSHALL Conversation  between  Benjamin  Gardiner  and  Dr.  Mudd 

May  18.  DANIEL  J.  THOMAS President,  Cabinet,  etc.,  to  be  killed 

June  6.  Recalled Did  not  ask  for  certificate  entitling  him  to  the  reward  for  the 

arrest  of  Dr.  Mudd 

Junes.  WILLIAM  A.EVANS Saw  Mudd  in  Washington  on  the  1st  or  2d  of  March;  saw 

him  entering  Mrs.  Surratt's  house 

May  20.  JOHN  H.  WABD Heard  of  the  assassination  at  Bryantown,  at  one  or  two 

o'clock  on  the  15th  ;  Booth  the  assassin 

May  20.  FRANK  BLOYCE Saw  Dr.  Mudd  in  Bryantown  on  the  afternoon  of  the  loth.... 

May  19.  MRS.  ELEANOR  BLOYCE Saw  Dr.  Mudd  and  gentleman  riding  into  Bryantown  on  the 

15th;  assassination  known  then-  that  afternoon 

May  19.  MBS.  BECKY  BRISCOE Saw  Dr.  Mudd  and  strange  gentleman  on  road  to  Bryan- 
town;  gentleman  returned;  Dr.  Mudd  went  on  to  village... 
June".  MARCUS  P.  NOBTON At  National  Hotel  on  the  3d  March;  Dr.  Mudd  entered  his 

room,  inquiring  for  Booth 


TABLE  OF  CONTENTS 


DEFENSE  OF  DR.  SAMUEL  A.  MUDD. 

JOHN  C.  THOMPSON Booth  at  Dr.  Queen's,  in  November,  wanting  to  buy  lands- 

introduced  him  to  Dr.  S.  A.  Mudd 

DR.  WILLIAM  T.  BOWMAN Booth  at  Bryantown,  wanting  to  buy  land  and  horses.... 

JEREMIAH  DYER Sheltered  in  the  pines,  in  1861;  reputation  of  J.  Z.Jenkins; 

character  of  Dr.  Mudd 

Recalled Knew  J.  H.  Surratt ! .'.'.'.'.'.' 

-Recalled Went  to  Richmond  to  avoid  arrest;  took  the  oath  of  alio- 

giance  on  his  return  from  Virginia 

ALVIN  J.  BROOK Knew  of  persons  in  the  pines  in  1S61 

FRANK  WASHINGTON Saw  no  one  in  the  woods  last  year;  character  of  Mary  Simms; 

Mudd's  treatment  of  his  servants 

BAPTIST  WASHINGTON No  one  slept  in  the  woods  last  year 

MRS.  MARY  JANE  SIMMS Neither  of  the  Gwynns  in  the  woods  last  year.... 

BENNETT  F.  GWYNN Reason  for  hiding  in  the  pines 

WILLIAM  A.  MUDD No  one  hiding  in  the  woods  last  year 

CHARLES  BLOYCE Saw  no  rebel  soldiers  at  Dr.  Mudd's;  what  the  colored  folks 

think  of  Mary  and  Milo  Simms 

JOHN  H.  DOWNING Conversation  between  Dr.  Mudd  andD.J.  Thomas 

DR.  JOHN  C.  THOMAS Mental  and  physical  condition  of  D.  J.  Thomas 

JAMES  W.  RICHARDS Thomas  asked  for  a  certificate 

WILLIAM  J.  WATSON Conversation  about  the  certificate  for  Thomas 

JOHN  C.  HOLLAND Received  no  letter  from  Thomas  in  reference  to  Dr.  Mudd's 

treasonable  talk . 

RICHARD  EDWARD  SKINNER Thomas's  reputation  for  veracity ;  his  loyalty 

JOHN  L.  TURNER Thomas's  reputation;  reputation  of  Dr.  Mudd 

POLK  DEAKINS Reputation  of  D.  J.  Thomas  for  veracity  and  loyalty 

JEREMIAH  T.  MUDD "       , 

LEMUEL  L.  ORME "       

JOHN  H.  BADEN "        

ELI  J.  WATSON "       

JOSHUA  S.  NAYLOR 


JOHN  WATERS Reputation  of  Dr.  Mudd 

DANIEL  W.  HAWKINS '     

JOSEPH  WATERS '     

FBANK  WARD '     

%  DR.  MUDD  IN  WASHINGTON  DECEMBER  23,  1864. 

JEREMIAH  T.  MUDD In  Washington  with  Dr.  Mudd;  his  character;  saw  Booth 

at  church  at  Bryantown  in  November  or  December ;  Dis 
cussion  on  the  admission  of  testimony ;  Dr.  Mudd's  loyalty. 
Recalled Identified  Dr.  Mudd's  handwriting 

J.  H.  MONTGOMERY Mudd  asked  him  to  bring  a  stove  from  Washington 

FRANCIS  LUCAS "  "         

SAMUEL  MCALLISTER Examined  the  Penn.  House  register  for  Dr.  Mudd's  name.... 

JULIA  ANN  BLOYCE Never  saw  John  II.  Surratt  or  rebel  soldiers  at  Dr.  Mudd's; 

chara'cter  of  Mary  and  Milo  Simms 

DR.  MUDD'S  WHEREABOUTS  FROM  IST  TO  STH  MARCH. 

FANNIE  MUDD Dr.  Mudd  at  home;  three  men  slept  in  the  pines  in  1861; 

have  seen  none  there  since 

MBS.  EMILY  MUDD Dr.  Mudd  attended  his  sick  sister;  never  saw  Surratt  or 

Confederate  soldiers  at  Dr.  Mudd's 

BETTY  WASHINGTON Dr.  Mudd  at  home;  character  of  Mary  Simms 

FRANK  WASHINGTON "  "  

JOHN  F.  DAVIS Dr.  Mudd  home  on  the  3d  of  March 

THOMAS  DAVIS Dr.  Mudd  attended  him  in  March 

HENRY  L.  MUDD,  JK Saw  Dr.  Mudd  daily  from  2d  to  5th  March;  Dr.  Mudd  had  no 

DR.  J.  H.  BLANFORD Saw  Dr.  Mudd"5Vh"Marcn7'M^ 

Miss  MARY  MUDD Dr.  Mudd  at  home  1st  to  5th;  never  saw  Confederate  soldiers 

at  Dr.  Mudd's  place 


DR.  MUDD  IN  WASHINGTON  MARCH  23o. 

THOMAS  L.  GARDINEE Accompanied  Dr.  Mudd  to  Washington 

DR.  CHARLES  ALLEN Dr.  Mudd  spent  the  evening  at  his  office 

HENRY  A.  CLAKK Dr.  Mudd  took  tea  with  him  ;  afterward  called  on  Dr.  Allen. 

AT  GIESBORO    APRIL  UTII. 

HENRY  L.  MUDD,  JB Went  with  Dr.  Mudd;  ownership  of  Dr.  Mudd's  farm 

ROBERT  F.  MARTIN At  his  house  23d  March;  again  in  April 

Recalled At  his  house  on  llth  April;  saw  Dr.  Mudd  in  Washington 

December  24 

DISCUSSION On  Dr.  Mudd's  object  in  visiting  Washington 

DR.  J.  H.  BLANFOBD With  Dr.  Mudd  llth  April 


DR.  MUDD'S  ABSENCE  FROM    HOME. 


TIIOMAS  DAVIS  , 


LEONABD  S.  ROBY.. 


DR.  JOSEPH  BLANFORD.. 
E.  D.  R.  BEAN.... 


, Dr.  Mudd  from  home  three  nights  since  January  9th;  two 

strange  men  at  Dr.  Mudd's  15th  April 

BETTY  WASHINGTON Dr.  Mudd  absent  only  three  nights  since  Christmas 

AT  BRYANTOWN  APRIL  I&TH  AND  IGTH. 

GEORGE  Booz Saw  Dr.  Mudd  return  in  the  afternoon 

Recalled Saw  no  one  with  Dr.  Mudd 

SUSAN  STEWART Saw  George  Booz  meet  Dr.  Mudd 

PRIMUS  JOHNSON Saw  Dr.  Mudd   on  his  way  to  Bryantown;   man  follow 

him;  man  returned  alone 

Heard  of  assassination  on  Saturday  afternoon;  learned  fr< 

Dr.  George  Mudd  who  the  assassin   was;    reputation 

Thomas 

Bryantown  road  as  seen  from  BOOK'S  house 

_     Mudd  iu  his  store  on  the  15th 

JOHN  ACTON Saw  Dr.  Mudd  on  his  way  to  Bryantown  followed  by  a  ma 

the  man  returned  alone , 

MASON  L.  MCPHERSON Heard  of  assassination  on  Saturday ;  reputation  of  Thoni a 

JOHN  MCPHERSON Heard  of  assassination  on  Saturday;  reputation  of  Dr.  Uu 

Mudd,  D.  J.  Thomas,  and  Dr.  Samuel  A.  Mudd 

PETER  TROTTER Assassination  rumors;  reputation  of  Thomas,  etc 

JOHN  I.  LANGLF.Y Heard  of  assassination  on  Saturday  from  soldiers 

MARCELLUS  GARDINER Assassination  known,  but  not  the  name  of  the  assassin  — 

DISCUSSION Dr.  Mudd's  declaration  concerning  the  assassination 


TABLE    OF    CONTENTS. 


XI 


May  29.  1  DR.  GEORGE  D.  MUDD Reputation  of  Dr.  S.  A.  Mudd  as  a  citizen  aud  as  a  master ; 

his  loyalty;  reputation  of  1).  J.  Thomas 

Recalled Dr.  S.  A.  Mudd's  statements  to  him 

BENJAMIN  GARDINER Saw  Dr.  Mudd  at  church  on  Sunday 

DISCUSSION On  the  admission  of  Dr.  Mudd's  statements 

Recalled Dr.  Mudd's  statements  about  the  assassination 

'DANIEL  E.  MONROE Rumor  that  Edwin  Booth  was  the  assassin;  reputation  of 

D.  J.  Thomas 

JOHN  F.  DAVIS At  Dr.  Mudd's  on  Tuesday  after  assassination 

JOHN  F.  HARDY Officers  at  Dr.  Mudd's  on  Friday 

JANE  HEROLD Did  not  know  Dr.  Mudd 

MRS.  MARY  E.  NELSON Never  heard  Dr.  Mudd's  name  mentioned 

EEV.  CHARLES  H.  STONESTREET Dr.  S.  A.  Mudd  at  college 

L.  A.  GOBRIGHT Assassin  not  positively  known  on  the  15th 

JAMES  JUDSON  JARBOE Did  not  know  Dr.  Mudd;  never  at  Mrs.  Surratt's  house; 

loyalty  of  witness;  discussion,  etc : 

HENRY  BURDEN Reputation  of  Marcus  P.  Norton 

D.  W.  MIDDLETON Mr.  Norton  in  the  Supreme  Court  3d  March 

JUDGE  A.  B.  OLIN Reputation  of  Marcus  P.Norton 

AGREEMENT Between  the  Judge  Advocate  and  Mr.  Ewing  as  to  the  testi 
mony  of  John  F.  Watson,  John  R.  Richardson,  Thomas  B. 
Smith 

TESTIMONY  IN  REBUTTAL. 

JOHN  F.  HARDY Conversation  with  Dr.  Mudd  on  Saturday  evening 

FRANCIS  R.  FARRELL Conversation  with  Dr.  Mudd  on  Saturday  evening 

JACOB  SHAVOR Reputation  of  Marcus  P.  Norton 

WILLIS  HAMISTON 

HON.  HORATIO  KING 

WILLIAM  WHEELEB 

SILAS  H.  HODGES 

MICHAEL  O'LAUGHLIN. 

WILLIAM  WALLACE The  arrest  of  Michael  O'Laughlin 

MARSHAL  JAMES  L.  McPHAiL O'Laughlin  in  the  rebel  service ; 

MRS.  MARY  VAN  TINE Intimacy  between  Booth.  O'Laughlin,  and  Arnold 

BILLY  WILLIAMS Correspondence  between  Booth,  O'Laughlin,  and  Arnold 

JOHN  HAPMAN Telegram  from  Booth  to  O'Laughlin 

EDWARD  C.  STEWART Another  dispatch  from  Booth  to  O'Laughlin 

SAMUEL  STREETT Booth  and  O'Laughlin  in  confidential  talk 

BERNARD  T.  EARLY In  Washington  with  O'Laughlin  on  the  13th  and  14th  of 

April;  O'Laughlin  went  to  see  Booth 

JAMES  B.  HENDERSON O'Laughlin  visited  Booth  on  the  14th 

DAVID  STANTON O'Laughlin  at  the  house  of  Sec'y  of  War  on  night  of  13th 

MAJOR  KILBURN  KNOX "  

JOHN  C.  HATTER "  

MARCUS  P.  NORTON Saw  Atzerodt  and  O'Laughlin  with  Booth  at  National 

DEFENSE  OF   MICHAEL  O'LAUGHLIN. 

BERNARD  J.  EARLY Came  to  Washington  with  O'Laughlin  on  13th  and  14th 

EDWARD  MURPHY "    

Recalled O'Laughlin  going  to  surrender  himself. 

JAMES  B.  HENDERSON With  O'Laughlin  on  the  13th  and  14th 

DANIEL  LOUGHRAN With  O'Laughlin  on  the  13th 

GEORGE  GRILLET "  

HENRY  E.  PURDY O'Laughlin  at  his  house  at  time  of  assassination 

JOHN  H.  FULLER O'Laughlin  slept  with  him  on  night  of  assassination 

JOHN  R.  GILES O'Laughlin  at  Penn.  House  on  night  of  14th 

P.  H.  MAULSBY Booth  and  O'Laughlin  schoolmates ;  O'Laughlin  surrendered 

himself 

SAMUEL  ARNOLD. 

EATON  G.  HORNER Arrest  of  Arnold;  discussion  on  admission  of  Arnold's 

statement  with  regard  to  arms ;  meeting  of  conspirators 
to  abduct  the  President 

VOLTAIRE  RANDALL Contents  of  Arnold's  carpet-sack 

LIEUT.  WILLIAM  H.  TERRY Letter  signed  "  Sam"  found  in  Booth's  trunk 

WILLIAM  MCPHAIL Identified  the  writing  of  the  letter  as  Arnold's 

GEORGE  R.  MAGEE Discussion  on  admission  of  testimony  as  to  Arnold  being  in 

the  rebel  service 

JAMES  L.  MCPHAIL Identified  Arnold's  handwriting 

LITTLETON  P.  D.  NEWMAN Arnold  received  suspicious  money  letter 

DEFENSE  OF  SAMUEL  ARNOLD. 

WILLIAM  S.  ARNOLD Whereabouts  of  Arnold  March  21st  to  April  let 

FRANK  ARNOLD Arnold  went  to  Fortress  Monroe  April  1st 

JACOB  SMITH Saw  Arnold  daily  from  20th  to  30th  March 

CHARLES  B.  HALL Arnold  employed  as  book-keeper 

GEORGE  CRAIG At  Mr.  Wharton's  store  with  Arnold 

MINNIE  POLE Saw  Arnold  in  Baltimore  March  20th,  27th,  and  2.8th 

EATON  G.  HORNEB Arnold's  confession  at  Fortress  Monroe 

JOHN  W.  WHARTON Employed  Arnold  as  clerk  at  tim«  of  his  arrest 

DISCUSSION On  the  daily  reading  of  the  record 

"  On  Mr.  Aikun's  proposal  to  offer  in  evidence  an  affidavit  of 

John  McCullough,  contradicting  a  statement  made  by 
Louis  J.  Weichmann 

Mr.  Ewmg  offered  in  evidence  a  copy  of  General  Orders  No.  26,  denning  the  Department  of  Wash 
ington , 


Xll 


TABLE    OF    CONTENTS. 


PACK 

June  <5.        A  tele-graphic  dispatch  from  John  McCullough  offered  in  evidence  by  Mr.  Ewing 243 

June  8.       Proclamation  of  the  President,  dated  September  25,  1862,  with  accompanying  certificate  of  the  Secre 
tary  of  War,  dated  31  ay  '.'>(),  1S6;>,  offered  in  evidence  by  the  Judge  Advocate , 243 

June  8.       A  copy  of  General  Orders  No.  100,  Adjutant-General's  Office,  Washington,  April  24,  1863,  offered  in 

evidence  by  the  Judge  Advocate 243 

June  12.      Extract  from  the  Journal  of  the  Senate  of  the  United  States  of  13th  February,  1861,  showing  the 
election  of  Abraham  Lincoln  and  Hannibal  Hanilin  as  President  and  Vice-President;  and  from 

the  Journal  of  nth  February,  1865,  showing  the  election  of  Abraham  Lincoln  and  Andrew  Johnson  244 
June  12.      BRIGADIER-GENERAL  E.  D.  TOWNSEND— Abraham  Lincoln  acted  as  President  and  Hannibal  Hamh^ 
as  Vice-President  of  the  United  States  for  four  years  preceding  March  4,  1865;  Andrew  Johnson 

acted  as  Vice-President  until  the  death  of  Abraham  Lincoln 244 

June  12.      Certified  copy  of  the  oath  of  office  of  Andrew  Johnson  as  President  of  the  United  States 244 

June  12.      Copy  of  the  resolution  of  the  Senate  appointing  William  H.  Seward  Secretary  of  State  of  the  United 

States 244 

June  12.      Copy  of  William  H.  Seward's  commission  as  Secretary  of  State  of  the  United  States 244 

June  14.      Discussion  on  the  charges  against  the  accused 244 

June  30.      Finding  and  sentence  of  DAVID  E.  HEROLD 247 

GEORGE  A.  ATZERODT 243 

LEWIS  PAYNE 248 

MRS.  MARY  E.  SURRATT 248 

MICHAEL  O'LAUGHLIN 248 

EDWARD  SPANGLER 248 

SAMUEL  ARNOLD 249 

SAMUEL  A.  MUDD 249 

President's  approval  of  the  findings  and  sentences 249 

Modification  of  the  sentences  of  Mudd,  Spangler,  Arnold,  and  O'Laughlin 249 

Application  for  Writ  of  Habeas  Corpus 250 

Argument  on  Jurisdiction  by  Hon.  lieverdy  Johnson 251 

by  Hon.  Thomas  Ewing,  jr 264 

Argument  in  defense  of  DAVID  E.  HEROLD 268 

EDWARD  SPANGLER 276 

MRS.  MARY  E.  SURRATT 289 

GEORGE  A.  ATZERODT 300 

LEWIS  PAYNE 308 

DR.  SAMUEL  A.  MUDD 318 

MICHAEL  O'LAUGHLIN  and  SAMUEL  ARNOLD 333 

Argument  by  Hon.  John  A.  Bingham 351 

APPENDIX. 

Opinion  of  the  Attorney-General 403 

Instructions  for  the  Government  of  the  Armies  of  the  United  States 410 

Proclamation  of  the  President,  September  25,  1862 419 

Affidavit  of  Louis  J.  Weichmann 420 

Affidavit  of  Captain  George  W.  Dutton 421 


ALPHABETICAL  INDEX  OF  WITNESSES. 


PROS. 

75 

34 

60 
95 
157 
167 

62 

46 

154 
155 

176 
176 

57 
177 
145 

70 
73 
46 

63 
74 
75 
148 

45 
51 

38 
62 
44 

159 

DBF. 

203 
197 

240 

240 

188 

151 
203 

195 
130 
200 
203 
183 

192 

112 
201 
201 
178 
136 
160 
153 

153 
181 

112 
216 

126 
126 

108 
197 

Cleaver,  William  E  

PROS. 

71 
148 
84 
91 
28 
30 
31 
94 

47 

83 

47 
40 
41 

88 

42 
71 

124 
124 
38 
95 

42 

72 

224 

63 
41 
98 
41 
41 
47 
52 
96 
53 
53 
171 
171 
143 
174 
218 

Allen,  Dr.  Charles  

Clendenin,  William  

Anderson,  Mrs.  Mary  J  

Cobb,  Sergeant  S  T 

Conger,  Ever  ton  J.... 

Arnold  W    S  

Conover    Sanford 

Auser  Nathan    

tt                     « 

Baden  John  H  

It                   It 

Ball,  William  

Corbett,  Sergeant  Boston 

Cottingham,  George 

it                                     <(                                 It 

u                 it 

a                         «                      u 

Courtney,  John  C  

Barr  John  H  

Coyle,  John  F     .... 

Craig,  George  

Bates,  Lewis  F  

Crane,  William  L  

Bean,  E.  D.  R  

Dana,  C.  A  

Bell  William  H    

it          it 

a                       n 

Dana,  Lieutenant  David  D 

Blanford   Dr  J  H  

Davis,  Dr.  Charles  W 

u                      <c 

u                     u 

«               u 

U                                It 

Davis    Thomas  

Bloyce  Charles  

11                       It 

Bloyce   Frank    

Dawson,  Charles  

u                 u 

Bloyce  Mrs  Eleanor 

Deakins  Polk 

Boigi    Charles  A                           .  .. 

Debonay  J  L             . 

Booz    George              

it            it 

u              u 

Dempsey,  Lieutenant  John  W 

Bowman   Dr  William  J  

U                                It                                 It 

Boyle  Rev  Francis  E  

Devenay,  John  

Branson    Margaret 

Doherty  Captain  E  P 

Brawner  Alexander        .    .            .... 

Dooley  F  H     

Brenner    A  

Douglass   H.  K  

Briscoe   Mrs   Becky  

Downing,  J.  H  

Duell,  Charles  

a                        a 

Dye   Sergeant  Joseph  M 

Brook   Albin  J 

Dyer    Jeremiah  ....         . 

Browning  W  B      ..    .        . 

it              it 

Buckingham  John  E  

n              it 

Bunker,  G.  W  

it              u 

tt                      tt 

Burden    Henry          ....      . 

Eastwood  Daniel  S  

Burke   Colonel  Martin  

Burroughs  Joseph  

U                         It 

U                         It 

Eckert,  Major  T  T  

Caldwell  John 

«                        "         A  

Calvert,  George  H                            ... 

u                      it 

u                         u 

u                      tt 

Campbell,  Robert  Anson  

Edmonds,  Captain  Eli,  U.  S.  N  

Cantlin  John.      . 

Carter  Hosea  B 

Eglent  Elzee   

Chamberlayne  Lewis  W 

Eglent  Sylvester  

Chester   S   K  

Evans   William  A  

Clark   Henry  A  

it                      it 

Clark  Spencer  M 

Farrell  Francis  R         

(xiii) 

XIV 


ALPHABETICAL   INDEX   OF    WITNESSES. 


PROS. 

DBF. 
151 

Hudspeth,  Mrs.  Mary  

PROS. 

39 

Ferguson   James 

42 

Hutchinson    George  B 

37 

Ferguson  James  P 

76 

Hyams   Godfrey  Joseph   ... 

54 

a                          u 

106 

James   Henry  JVI 

39 

Jarboe  Jomes  J 

Fitzpatrick   Miss  Honora 

121 

Jaquette    Isaac  

82 

a                    u 

132 

Jenkins,  J.  Z  

u                          u 

132 

a            a 

Fletcher  Jolin 

83 

Jenkins   Mrs   Mary  

u              a 

145 

Jett   Willie  S  

90 

Ford   H   Clay  

99 

Johnson,   Edward  

Ford   James  R 

100 

Johnson    Primus 

Ford   John  T                   

102 

Jones  Robert  R      .....       

144 

u                   u 

104 

Jones   Samuel  P  

37 

Frazier   Fdvvard 

49 

Jordan  Edward 

159 

Fuller  John  II 

231 

Kaighn    Margaret 

Gardiner  Benjamin  W. 

211 

Kallenbach   Andrew. 

a                          u 

211 

a                        it 

141 

Gardiner,  Marcellus  

205 

Kent  William  T  

82 

Gardiner,  Polk  

85 

Kelleher    James  

Gardiner  Thomas  L 

71 

Keilotz  William  H 

•    a                      a 

196 

Keim   Lieutenant  W   R    

147 

Gavacan  Simon.  

89 

King  Horatio.  

220 

Gemmill    Sergeant  L   W  

149 

Knox,  Major  Kilburn  

226 

Gifford  James  J 

77 

Lamb   James 

u                       ti 

109 

it             it 

Giles  John  R 

231 

Lanihan  Rev  P     

Gobright   LA  

213 

Lan^ley  John  T  

112 

62 

Grant  John    

166 

Leaman,  James  E  

Grant  Lieutenant-General  U  S 

37 

Leaman    Somerset    

Grant    Mrs   Lucy  Ann 

166 

Lee  John     

144 

Graves   W    D 

51 

Lloyd  John  M  

85 

146 

u                   u 

87 

Grillett    George 

230 

Lloyd  Joshua                     ... 

90 

Gwynn    Bennett  F 

126 

Loughran   Daniel               

it                                       U 

126 

Lovett  Lieutenant  Alexander  

87 

It                              It 

182 

Lucas   Francis  

Hall   Charles  B 

241 

Hall    Frederick  H 

52 

Maddox  James  L 

75 

Hall    Dr  James  C 

164 

Ma  fee  George  R  

236 

(i                            a 

167 

Marsh    Salome  

57 

48 

159 

220 

Marshall   William 

172 

223 

Martin   R    F          .... 

Hardy  John  F 

213 

U                      It 

it                 a 

218 

Maulsby   P  H      

Harkins  Louis  B  . 

153 

McAllister   Samuel  

Hatter  John  C 

227 

a                 tt 

Hawkins    Daniel  W        

189 

McCall  Colonel  W  H  H  

Hawkins    Henry    

247 

McDevitt   James  A  

140 

66 

McGowan    Captain  Theodore           .. 

78 

Henderson  J  B 

225 

McKim   Dr   S  A  H     

a                   a 

229 

McPhail   James  L  

148 

Herold   Emma    

96 

u                        n 

222 

152 

u                         u 

239 

u                u 

213 

McPhail  William  

236 

Hess  C  D           

99 

Hodges   Silas  H....*.  „ 

221 

McPherson,  Mason  L  

Holahan   John  T 

139 

Memmert   Frederick  

58 

Holahan   Mrs    Eliza  

132 

Merrick    Henry  E  

Holland  John  C  

187 

Merritt  James  B  

35 

234 

u                       tt 

37 

U                                   (I 

241 

Metz    Hezekiah  

149 

133 

Middleton  D  W 

Hoxton  John  T 

137 

Miles   John          

81 

Hoxton    William  W     

137 

Monroe   Daniel  E  

Hoyle   William  L  

136 

Monroe   Captain  Frank,  U.  S.  N  

Hubbard.  John  B  

165 

Montaromerv.  J.  H... 

OP  A 


MILITARY    COMMISSION, 

Convened  at  Washington,  D.  C.,  by  virtue  of  the  following  Orders: 


EXECUTIVE  CHAMBER,        \ 
Washington  City,  May  1,  1S55.  J 

WHEREAS,  the  Attorney-General  of  the 
United  States  hath  given  his  opinion: 

That  the  persons  implicated  in  the  murder 
of  the  late  President,  Abraham  Lincoln,  and 
the  attempted  assassination  of  the  Honorable 
William  H.  Seward,  Secretary  of  State,  and 
in  an  alleged  conspiracy  to  assassinate  other 
officers  of  the  Federal  Government  at  Wash 
ington  City,  and  their  aiders  and  abettors, 
are  subject  to  the  jurisdiction  of,  and  lawfully 
triable  before,  a  Military  Commission; 

It  is  ordered:  1st.  'That  the  Assistant 
Adjutant-General  detail  nine  competent  mili 
tary  officers  to  serve  as  a  Commission  for  the 
trial  of  said  parties,  and  that  the  Judge 
Advocate  General  proceed  to  prefer  charges 
against  said  parties  for  their  alleged  offenses, 
and  bring  them  to  trial  before  said  Military 
Commission ;  that  said  trial  or  trials  be  con 
ducted  by  the  said  Judge  Advocate  General, 
and  as  recorder  thereof,  in  person,  aided  by 
such  Assistant  and  Special  Judge  Advocates 
as  he  may  designate;  and  that  said  trials  be 
conducted  with  all  diligence  consistent  with 
the  ends  of  justice:  the  said  Commission  to 
sit  without  regard  to  hours. 

2d.  That  Brevet  Major-Gen eral  Hartranft 
be  assigned  to  duty  as  Special  Provost  Mar 
shal  General,  for  the  purpose  of  said  trial, 
and  attendance  upon  said  Commission,  and 
the  execution  of  its  mandates. 

3d.  That  the  said  Commission  establish 
such  order  or  rules  of  proceeding  as  may 
avoid  unnecessary  delay,  and  conduce  to  the 
ends  of  public  justice. 

[Signed]    '     ANDREW  JOHNSON. 


WAR  DEPARTMENT,  ADJ'T-GENERAL'S  OFFICE,     \ 
Washington,  May  6,  1665.  J 

Special  Orders,  No.  211. 

EXTRACT. 
******** 

4.  A  Military   Commission   is   hereby  ap 
pointed  to  meet  at  Washington,  District  of 

2 


Columbia,  on  Monday,  the  8th  day  of  May, 
1865,  at  9  o'clock  A.  M.,  or  as  soon  there 
after  as  practicable,  for  the  trial  of  David  E. 
Herold,  George  A.  Atzerodt,  Lewis  Payne, 
Michael  O'Laughlin,  Edward  Spangler,  Sam 
uel  Arnold,  Mary  E.  Surratt,  Samuel  A. 
Mudd,  and  such  other  prisoners  as  may  be 
brought  before  it,  implicated  in  the  murder 
of  the  late  President,  Abraham  Lincoln,  and 
the  attempted  assassination  of  the  Honorable 
William  H.  Seward,  Secretary  of  State,  and 
in  an  alleged  conspiracy  to  assassinate  other 
officers  of  the  Federal  Government  at  Wash 
ington  City,  and  their  aiders  and  abettors. 

DETAIL    FOR    THE   COURT. 

Major-General  David  Hunter,  U.  S.  Vol 
unteers. 

Major-General  Lewia  Wallace,  U.  S.  Vol 
unteers. 

Brevet  Major-General  August  V.  Kautz, 
U.  S.  Volunteers. 

Brigadier-General  Albion  P.  Howe,  U.  S. 
Volunteers. 

Brigadier-General  Robert  S.  Foster,  U.  S. 
Volunteers. 

Brevet  Brigadier-General  Cyrus  B.  Corn- 
stock,  U.  S.  Volunteers. 

Brigadier-General  T.  M.  Harris,  U.  S.  Vol 
unteers. 

Brevet  Colonel  Horace  Porter,  Aid-de- 
Camp. 

Lieutenant-Colonel  David  R.  Clendenin, 
Eighth  Illinois  Cavalry. 

Brigadier-General  Joseph  Holt,  Judge  Ad 
vocate  General  U.  S.  Army,  is  appointed  the 
Judge  Advocate  and  Recorder  of  the  Com 
mission,  to  be  aided  by  such  Assistant  or 
Special  Judge  Advocates  as  he  may  desig 
nate. 

The  Commission  will  sit  without  regard  to 
hours. 

By  order  of  the  President  of  the  United 
States. 

[Signed]  W.  A.  NICHOLS, 

Assistant  Adjutant-General. 
(17) 


18 


THE    CONSPIRACY   TRIAL. 


COURT-ROOM,  WASHINGTON,  I).  C.,     ") 
May  9,  1865,  10  o'clock  A.  M.  / 

The  Commission  met  pursuant  to  the  fore 
going  Orders. 

All  the  members  present;  also  the  Judge 
Advocate  General. 

The  Hon.  John  A.  Bingham,  and  Brevet 
Colonel  H.  L.  Burnett,  Judge  Advocate,  were 
then  introduced  by  the  Judge  Advocate 
General  as  Assistant  or  Special  Judge  Advo 
cates. 

The  accused,  David  E.  Herold,  George 
A.  Atzerodt,  Samuel  Arnold,  Lewis  Payne, 
Michael  O'Laughlin,  Edward  Spangler,  Mary 
E.  Surratt,  and  Samuel  A.  Mudd,  were  then 
brought  into  court,  and  being  asked  whether 
they  desired  to  employ  counsel,  replied  that 
they  did. 

To  afford  the  accused  opportunity  to  secure 
counsel,  the  Commission  adjourned  to  meet 
on  Wednesday,  May  10,  at  10  o'clock  A.  M. 


COURT-ROOM,  WASHINGTON,  D.  C..     ") 
May  10,  18G5,  10  o'clock  A.  M.  J 

The  Commission  met  pursuant  to  adjourn 
ment. 

Present,  all  the  members  named  in  the  fore 
going  Order;  also  present  the  Judge  Advo 
cate  General,  and  Assistant  Judge  Advocates 
Bingham  and  Burnett. 

The  Judge  Advocate  General  then  read  the 
following  Special  Order: 

WAR  DEPARTMENT,  ATU'T-GENERAL'S  OFFICE,     •> 
Washington,  May  9,  1805.  [ 

Special  Orders,  No.  216. 

EXTRACT. 


91.  Brevet  Brigadier-General  Cyrus  B. 
Comstock,  U.  S.  Volunteers,  and  Brevet 
Colonel  Horace  Porter,  Aid-de-Camp,  are  here 
by  relieved  from  duty  as  members  of  the 
Military  Commission,  appointed  in  Special 
Orders  No.  211,  paragraph  4,  dated  "War 
Department,  Adjutant-General's  Office,  Wash 
ington,  May  6,  1865,"  and  Brevet  Brigadier- 
General  James  A.  Ekin,  TJ.  S.  Volunteers, 
and  Brevet  Colonel  C.  H.  Tomkins,  U.  S. 
Army,  are  detailed  in  their  places  respectively. 

The  Commission  will  be  composed  as  fol 
lows  : 

Major-General  David  Hunter,  U.  S.  Volun 
teers. 

Major-General  Lewis  Wallace,  U.  S.  Volun 
teers. 

Brevet  Major-General  August  V.  Kautz,  U. 
S.  Volunteers. 

Brigadier-General  Albion  P.  Howe,  U.  S. 
Volunteers. 

Brigadier-General  Robert  S.  Foster,  U.  S. 
Volunteers. 

Brevet  Brigadier-General  James  A.  Ekin, 
U.  S.  Volunteers. 

Brigadier-General  T.  M.  Harris,  U.  S. 
Volunteers. 

Brevet  Colonel  C.  H.  Tomkins,  U.  S.  Army. 

Lieutenant-Colonel  David  R.  Clendenin, 
Eighth  Illinois  Cavalry. 


Brigadier-General  Joseph  Holt,  Judge  Ad 
vocate  and  Recorder. 

By  order  of  the  President  of  the  United 
States. 

[Signed]  E.  D.  TOWNSEND. 

Assistant  A dju (ant- Genera!. 

All  the  members  named  in  the  foregoing 
order  being  present,  the  Commission  pro- 
ceeded  to  the  trial  of  David  E.  Herold,  George 
A.  Atzerodt,  Lewis  Payne,  Michael  O'Laugh 
lin,  Edward  Spangler,  Samuel  Arnold,  Mary 
E.  Surratt,  and  Samuel  A.  Mudd,  who  were 
brought  into  court,  and  having  heard  read 
the  foregoing  orders,  the  accused  were  asked 
if  they  had  any  objection  to  any  member 
named  therein,  to  which  all  severally  replied 
they  had  none. 

The  members  of  the  Commission  were 
then  duly  sworn  by  the  Judge  Advocate  Gen 
eral,  in  the  presence  of  the  accused. 

The  Judge  Advocate  General,  and  Assist 
ant  Judge  Advocates,  Hon.  John  A.  Bingham 
and  Brevet  Colonel  H.  L.  Burnett,  were  then 
duly  sworn  by  the  President  of  the  Commis 
sion,  in  the  presence  of  the  accused. 

Benn  Pitman,  R.  Suttori,  D.  F.  Murphy, 
R.  R.  Hitt,  J.  J.  Murphy,  and  Edward  V. 
Murphy,  were  duly  sworn  by  the  Judge 
Advocate  General,  in  the  presence  of  the  ac 
cused,  as  reporters  to  the  Commission. 

The  accused  were  then  severally  arraigned 
on  the  following  Charge  and  Specification: 

CHARGE  AND  SPECIFICATION 

AGAINST 

DAVID  E.  HEROLD,  GEORGE  A. 
ATZERODT,  LEWIS  PAYNE,  MI 
CHAEL  O'LAUGHLIN,  EDWARD 
SPANOLER,  SAMUEL  ARNOLD, 
MARY  E.  SURRATT,  AND  SAM 
UEL  A.  MUDD. 

CHARGE. — For  maliciously,  unlawfully,  and 
traitorously,  and  in  aid  of  the  the  existing 
armed  rebellion  against  the  United  States  of 
America,  on  or  before  the  6th  day  of  March, 
A.  D.  1865,  and  on  divers  other  days  between 
that  day  and  the  15th  day  of  April,  A.  D. 
1865,  combining,  confederating,  and  conspiring 
together  with  one  John  H.  Surratt,  John  Wilkcs 
Sooth,  Jefferson  Davis,  George  N.  Sanders. 
Beverly  Tucker,  Jacob  Thompson,  William  C. 
deary,  Ctement  C.  Clay,  George  Harper. 
George  Young,  and  others  unknown,  to  kill 
and  murder,  within  the  Military  Department 
of  Washington,  and  within  the  fortified  and 
intrenched  lines  thereof,  Abraham  Lincoln, 
late,  and  at  the  time  of  said  combining,  con 
federating,  and  conspiring,  President  of  the 
United  States  of  America,  and  CommantJer-in- 
Chief  of  the  Army  and  Navy  thereof ;  Andrew 
Johnson,  now  Vice- President  of  the  United 
States  aforesaid;  William  H.  Seward,  Secrc' 
tary  of  State  of  the  United  States  aforesaid ; 


CHARGE    AND    SPECIFICATION. 


19 


and  Ulysses  S.  Grant,  Lieutenant- General  of  Lincoln,  in  command  of  the  Armies  of  the 
the  Army  of  the  United  States  aforesaid,  then  United  States,  aforesaid;  and  unlawfully,  ma- 
in  command  of  the  Armies  of  the  United\  liciously,  and  traitorously  to  kill  and  murder 
States,  wider  the  direction  of  the  said  Abra 
ham  Lincoln;  and  in  pursuance  of  and  ir 
prosecuting  said  malicious,  unlawful,  an< 
traitorous  conspiracy  aforesaid,  and  in  aid  of 
said  rebellion,  afterward,  to-wit,  nn  the  14th  day 
of  April,  A.  'D.  1865,  within  the  Military 
Department  of  Washington  aforesaid,  and 
within  the  fortified  and  intrenched  lines  of 
said  Military  Department,  together  with  saia 
John  Wilkes  Booth  and  John  H.  Surratt, 
maliciously,  unlawfully,  and  traitorously  mur 
dering  the  said  Abraham  Lincoln,  then  Presi 
dent  of  the  United  States  and  Commander-in- 
Chief  of  the  Army  and  Navy  of  the  United 
States,  as  aforesaid;  and  maliciously,  unlaw 
fully,  and  traitorously  assaulting,  with  intent 
to  kill  and  murder,  the  said  William  H.  Sew- 
ard,  then  Secretary  of  State  of  the  United 
States,  as  aforesaid;  and  lying  in  wait  with 
intent  maliciously,  unlawfully,  and  traitorously 
to  kill  and  murder  the  said  Andrew  Johnson, 
then  being  Vice- President  of  the  United  States ; 
and  the  said  Ulysses  S.  Grant,  then  being 
Lieutenant- General,  and  in  command  of  the 
Armies  of  the  United  States,  as  aforesaid. 


SPECIFICATION. — In  this:  that  they,  the 
paid  David  E.  Herold,  Edward  Spangler, 
Lewis  Payne,  Michael  O'Laughlin,  Samuel 
Arnold,  Mary  E.  Surratt,  George  A.  Atzerodt, 
and  Samuel  A.  Mudd,  together  with  the  said 
John  H.  Surratt  and  John  Wilkes  Booth,  in 
cited  and  encouraged  thereunto  by  Jefferson 
Davis,  George  N.  Sanders,  Beverly  Tucker, 
Jacob  Thompson,  William  C.  Cleary,  Clem 
ent  C.  Clay,  George  Harper,  George  Young, 
and  others  unknown,  citizens  of  the  United 
States  aforesaid,  and  who  were  then  engaged 
in  armed  rebellion  against  the  United  States 
of  America,  within  the  limits  thereof,  did,  in 
aid  of  said  armed  rebellion,  on  or  before  the 
6th  day  of  March,  A.  D.  1865,  and  on  divers 
other  days  and  times  between  that  day  and 
the  15th  day  of  April,  A.  D.  1865,  combine, 
confederate,  and  conspire  together,  at  Wash 
ington  City,  within  the  Military  Department 


of  Washington,  and  within  the  intrenched 
fortifications  and  military  lines  of  the  United 
States,  there  being,  unlawfully,  maliciously, 
and  traitorously  to  kill  and  murder  Abraham 
Lincoln,  then  President  of  the  United  States 
aforesaid,  and  Cormnander-in-Chief  of  the 
Army  and  Navy  thereof;  and  unlawfully, 
maliciously,  and  traitorously  to  kill  and  mur 
der  Andrew  Johnson,  now  Vice-President  of 
the  said  United  States,  upon  whom,  on  the 
death  of  said  Abraham  Lincoln,  after  the  4th 
day  of  March,  A.  D.  1865,  the  office  of  Presi 
dent  of  the  said  United  States,  and  Com- 
mander-in-Chief  of  the  Army  and  Navy 
thereof,  would  devolve;  and  to  unlawfully, 
maliciously,  and  traitorously  kill  and  murder 
Ulysses  S.  Grant,  then  Lieutenant-General, 
and,  under  the  direction  of  the  said  Abraham 


William  II.  Sevvard,  then  Secretary  of  State 
of  the  LTnited  States  aforesaid,  whose  duty  it 
was,  by  law,  upon  the  death  of  said  President 
and  Vice-President  of  the  United  States  afore 
said,  to  cause  an  election  to  be  held  for  elect 
ors  of  President  of  the  United  States:  the 
conspirators  aforesaid  designing  s.nd  intend- 
'nc?  by  the  killing  and  murder  of  the  said 
Abraham  Lincoln,  Andrew  Johnson,  Ulysses 
S.  Grant,  and  William  H.  Seward,  as  afore 
said,  to  deprive  the  Army  and  Navy  of  the 
said  United  States  of  a  constitutional  Com- 
mander-in-Chief ;  and  to  deprive  the  Armies 
of  the  United  States  of  their  lawful  com 
mander;  and  to  prevent  a  lawful  election  of 
President  and  Vice-President  of  the  United 
States  aforesaid;  and  by  the  means  aforesaid 
to  aid  and  comfort  the  insurgents  engaged  in 
armed  rebellion  against  the  said  United  States, 
as  aforesaid,  and  thereby  to  aid  in  the  subver 
sion  and  overthrow  of 'the  Constitution  and 
laws  of  the  said  United  States. 

And  being  so  combined,  confederated,  and 
conspiring  together  in  the  prosecution  of  said 
unlawful  and  traitorous  conspiracy,  on  the 
night  of  the  14th  day  of  April,  A.  D.  1865,  at 
the  hour  of  about  10  o'clock  and  15  minutes 
P.  M.,  at  Ford's  Theater,  on  Tenth  Street,  in 
the  City  of  Washington,  and  within  the  mili 
tary  department  and  military  lines  aforesaid, 
John  Wilkes  Booth,  one  of  the  conspirators 
aforesaid,  in  pursuance  of  said  unlawful  and 
traitorous  conspiracy,  did,  then  and  there,  un 
lawfully,  maliciously,  and  traitorously,  and 
with  intent  to  kill  and  murder  the  said  Abra 
ham  Lincoln,  discharge  a  pistol  then  held  in 
the  hands  of  him,  the  said  Booth,  the  same 
being  then  loaded  with  powder  and  a  leaden 
ball,  against  and  upon  the  left  and  posterior 
side  of  the  head  of  the  said  Abraham  Lin 
coln  ;  and  did  thereb}r,  then  and  there,  inflict 
upon  him,  the  said  Abraham  Lincoln,  then 
President  of  the  said  United  States,  and 
3ommander-in-Chief  of  the  Army  and  Navy 
:hereof,  a  mortal  wound,  whereof,  afterward, 
•o-wit,  on  the  15th  day  of  April,  A.  D.  1865, 
at  Washington  City  aforesaid,  the  said  Abra- 
iam  Lincoln  died;  and  thereby,  then  and 
here,  and  in  pursuance  of  said  conspiracy, 
he  said  defendants,  and  the  said  John  Wilkes 
Booth  and  John  H.  Surratt,  did  unlawfully, 
raitorously,  and  maliciously,  and  with  the 
ntent  to  aid  the  rebellion,  as  aforesaid,  kill 
and  murder  the  said  Abraham  Lincoln,  Pres- 
dent  of  the  United  States,  as  aforesaid. 

And  in  further  prosecution  of  the  unlawful 

and  traitorous  conspiracy  aforesaid,  and   of 

he  murderous  and  traitorous  intent  of  said 

:onspiracy,    the   said    Edward   Spangler,    on 

said  14th' day  of  April,  A.  D.  1865,  at  about 

lie    same   hour   of  that  day,    as   aforesaid, 

within  said  military  department  and  the  mil- 

tary  lines  aforesaid,  did  aid   and  assist  the 

said  John  Wilkes  Booth  to  obtain  entrance 


20 


THE    CONSPIRACY   TRIAL. 


to  the  box  in  said  theater,  in  which  said '  Augustus  II.  Seward,  Einrick  W.  Hansell, 
Abraham  Lincoln  was  sitting  at  the  time  he  | and  George  F.  Robinson, 
was  assaulted  and  shot,  as  aforesaid,  by  John  j  And  in  further  prosecution  of  said  conspir- 
Wilkes  Booth;  and  also  did,  then  and  there,  acy  and  its  traitorous  and  murderous  designs, 
aid  said  Booth  in  barring  and  obstructing  the  said  George  A.  Atzerodt  did,  on  the  night 
the  door  of  the  box  of  said  theater,  so  as  to  of  the  14th  of  April,  A.  D.  186-5,  and  about 
hinder  and  prevent  any  assistance  to  or  res-  the  same  hour  of  the  night  aforesaid,  within 

n    ,  i  -t       *i  i          *          -r    •  1  •  ill          I  xT_  -. !  1  !  A  _  - ,1 . 1    i.1-   _ !  1  '  i.  - 1  * 


cue  of  the  said  Abraham  Lincoln  against  the 
murderous  assault  of  the  said  John  Wilkes 
Booth;  and  did  aid  and  abet  him  in  making 
his  escape  after  the  said  Abraham  Lincoln 
had  been  murdered  in  manner  aforesaid. 

And  in  further  prosecution  of  said  unlaw 
ful,  murderous,  and  traitorous  conspiracy,  and 
in  pursuance  thereof,  and  with  the  intent  as 
aforesaid,  the  said  David  E.  Herold  did,  on 
the  night  of  the  14th  of  April,  A.  D.  1865, 
within  the  military  department  and  military 
lines  aforesaid,  aid,  abet,  and  assist  the  said 
John  Wilkes  Booth  in  the  killing  and  mur 
der  of  the  said  Abraham  Lincoln,  and  did, 
then  and  there,  aid  and  abet  and  assist  him, 
the  said  John  Wilkes  Booth,  in  attempting 
to  escape  through  the  military  lines  afore 
said,  and  did  accompany  and  assist  the  said 
John  Wilkes  Booth  in  attempting  to  conceal 
himself  and  escape  from  justice,  after  killing 
and  murdering  said  Abraham  Lincoln  as 
aforesaid. 

And  in  further  prosecution  of  said  unlaw 
ful  and  traitorous  conspiracy,  and  of  the  in 
tent  thereof,  as  aforesaid,  the  said  Lewis 
Payne  did.  on  the  same  night  of  the  14th 
day  of  April,  A.  D.  1865,  about  the  same 
hour  of  10  o'clock  and  15  minutes  P.  M.,  at 
the  City  of  Washington,  and  within  the  mil 
itary  department  and  the  military  lines  afore 
said,  unlawfully  and  maliciously  make  an 
assault  npon  the  said  William  H.  Seward, 
Secretary  of  State,  as  aforesaid,  in  the  dwell 
ing-house  and  bed-chamber  of  him,  the  said 
William  H.  Seward,  and  the  said  Payne  did, 
then  and  there,  with  a  large  knife  held  in 
his  hand,  unlawfully,  traitorously,  and  in 
pursuance  of  said  conspiracy,  strike,  stab, 
cut,  and  attempt  to  kill  and  murder  the  said 
William  H.  Seward,  and  did  thereby,  then 
and  there,  and  with  the  intent  aforesaid,  with 
said  knife,  inflict  upon  the  face  and  throat  of 
the  said  William  II.  Seward  divers  grievous 
wounds.  And  the  said  Lewis  Payne,  in  fur 
ther  prosecution  of  said  conspiracy,  at  the 
same  time  and  place  last  aforesaid,  did  at 
tempt,  with  the  knife  aforesaid,  and  a  pistol 
held  in  his  hand,  to  kill  and  murder  Fred 
erick  W.  Seward,  Augustus  H.  Seward,  Em- 
rick  W.  Hansell,  and  George  F.  Robinson, 
who  were  then  striving  to  protect  and  rescue 
the  said  William  II.  Seward  from  murder  by 
the  said  Lewis  Payne,  and  did,  UKUI  and  there, 
with  said  knife  and  pistol  held  in  his  hands, 
inflict  upon  the  head  of  said  Frederick  W. 
Seward,  and  upon  the  persons  of  said  Augustus 
H.  Seward,  Emrick  W.  Hansell,  and  George 
F.  Robinson,  divers  grievous  and  dangerous 
wounds,  with  intent,  then  and  there,  to  kill 
and  murder  the  said  Frederick  W.  Seward, 


the  military  department  and  the  military  lines 
aforesaid,  lie  in  wait  for  Andrew  Johnson, 
then  Vice-President  of  the  United  States 
aforesaid,  with  the  intent  unlawfully  and  ma 
liciously  to  kill  and  murder  him,  the  said 
Andrew  Johnson. 

And  in  the  further  prosecution  of  the  con 
spiracy  aforesaid,  and  of  its  murderous  and 
treasonable  purposes  aforesaid,  on  the  nights 
of  the  13th  and  14th  of  April,  A.  D.  1865,  at 
Washington  City,  and  within  the  military  de 
partment  and  the  military  lines  aforesaid,  the 
said  Michael  O'Laughlin  did,  then  and  there, 
lie  in  wait  for  Ulysses  S.  Grant,  then  Lieuten- 
ant-General  and  Commander  of  the  Armies 
of  the  United  States,  as  aforesaid,  with  in 
tent,  then  and  there,  to  kill  and  murder  the 
said  Ulysses  S.  Grant. 

And  in  further  prosecution  of  said  conspir 
acy,  the  said  Samuel  Arnold  did,  within  the 
military  department  and  the  military  lines 
aforesaid,  on  or  before  the  6th  day  of  March, 
A.  D.  3865,  and  on  divers  other  days  and  times 
between  that  day  and  the  loth  day  of  April, 
A.  D.  1865,  combine,  conspire  with,  and  aid, 
counsel,  abet,  comfort,  and  support,  the  said 
John  Wilkes  Booth,  Lewis  Payne,  George  A. 
Atzerodt,  Michael  O'Laughlin,  and  their  con 
federates  in  said  unlawful,  murderous,  and 
traitorous  conspiracy,  and  in  the  execution 
thereof,  as  aforesaid. 

And  in  further  prosecution  of  said  conspir 
acy,  Mary  E.  Surratt  did,  at  Washington 
City,  and  within  the  military  department  and 
military  lines  aforesaid,  on  or  before  the  6th 
day  of  March,  A.  D.  1865,  and  on  divers 
other  days  and  times  between  that  day  and 
the  20th  day  of  April,  A.  D.  1865,  re'ceive, 
entertain,  harbor,  and  conceal,  aid  and  assist 
the  said  John  Wilkes  Booth,  David  E.  Her 
old,  Lewis  Payne,  John  H.  Surratt,  Michael 
0  Laughlin,  George  A.  Atzerodt,  Samuel  Ar 
nold,  and  their  confederates,  with  the  knowl 
edge  of  the  murderous  and  traitorous  conspir 
acy  aforesaid,  and  with  intent  to  aid,  abet,  and 
assist  them  in  the  execution  thereof,  and  in 
escaping  from  justice  after  the  murder  of  the 
said  Abraham  Lincoln,  as  aforesaid. 

And  in  further  prosecution  of  said  con 
spiracy,  the  said  Samuel  A.  Mudd  did,  at 
Washington  City,  and  within  the  military  de 
partment  and  military  lines  aforesaid,  o'n  or 
before  the  6th  day  of  March,  A.  D.  1865,  and 
on  divers  other  days  and  times  between  that 
day  and  the  20th 'day  of  April,  A.  D.  1865, 
advise,  encourage,  receive,  entertain,  harbor, 
and  conceal,  aid  and  assist  the  said  John 
Wilkes  Booth,  David  E.  Herold,  Lewis  Payne, 
John  II.  Surratt,  Michael  O'Laughlin,  George 
A.  Atzerodt,  Mary  E.  Surratt,  and  Samuel 


RULES   OF    PROCEEDING. 


21 


Arnold,  and  their  confederates,  with  knowl 
edge  of  the  murderous  and  traitorous  con 
spiracy  aforesaid,  and  with  the  intent  to  aid, 
abet,  and  assist  them  in  the  execution  thereof, 
and  in  escaping  from  justice  after  the  murder 
of  the  said  Abraham  Lincoln,  in  pursuance 
of  said  conspiracy  in  manner  aforesaid. 

By  order  of  the  President  of  the  United 
States.  J.  HOLT, 

Judge  Advocate  General. 
/ 

Charge  and  Specification  indorsed  : 
"  Copy  of  the  within  Charge  and  Specifica 
tion  delivered  to  David  E.  Herold,  George  A. 
Atzerodt,  Lewis  Payne,  Michael  O'Laughlin, 
Samuel  Arnold,  Mary  E.  Surratt,  and  Samuel 
A.  Mudd,  on  the  8th  day  of  May,  1865. 

[Signed]          "  J.  F.  HARTRANFT, 
Brev.  Maj.-Gen.  and  Spec.  Prov.  Mar.  Gen." 

To  the  Specification,  all  the  accused  severally 

pleaded "Not  Guilty." 

To  the  Charge "Not  Guilty" 

The  Commission  then  considered  the  rules 
and  regulations  by  which  its  proceedings 
ehould  be  conducted,  and  after  discussion 
adopted  the  following  : 

RULES  OF  PROCEEDING 

ADOPTED  BY  THE  MILITARY  COMMISSION 
CONVENED  PURSUANT  TO  SPECIAL 
ORDERS  Nos.  211  AND  216. 

1.  The  Commission  will  hold  its  sessions 
in  the  following  hours:  Convene  at  10  A.  M., 
and  sit  until  1  P.  M.,  and  then  take  a  recess 
of  one  hour.     Resume  business  at  2  P.  M. 

2.  The  prisoners  will  be  allowed  counsel, 
who  shall  file  evidence  of  having  taken  the 
oath  prescribed  by  act  of  Congress,  or  shall 
take  said  oath  before  being  permitted  to  ap 
pear  in  the  case. 

3.  The  examination  of  witnesses  shall  be 
conducted  on  the  part  of  the  Government  by 
one  Judge  Advocate,  and  by  counsel  on  the 
part  of  the  prisoners. 

4.  The  testimony  shall  be  taken  in  short 
hand   by  reporters,  who   shall  first  take  an 
oath   to  record    the  evidence  faithfully  and 
truly,  and  not  to  communicate  the  same,  or 
any  part  thereof,  or  any  proceedings  on  the 
trial,  except   by   authority    of  the   presiding 
officer. 

5.  A  copy  of  the  evidence  taken  each  day 
e  mil  be  furnished  the  Judge  Advocate  Gen 
eral,    and   one   copy    to   the   counsel  of  the 
prisoners. 

6.  No  reporters  but   the  official    reporters 
thali  be  admitted   to   the    court-room.      But 
the   Judge    Advocate    General    will    furnish 
daily,  in  his  discretion,  to  the   agent  of  the 
Associated  Press,  a  copy  of  such  testimony  and 
proceedings  as  maybe  published,  pending  the 
trial,  without  injury  to  the  public  and  the  ends 
of  justice.     All  other  publication  of  the  evi 
dence  and  proceedings  is  forbidden,  and  will 


be  dealt  with  as  contempt  of  Court,  on  the 
part  of  all  persons  or  parties  concerned  in 
making  or  procuring  such  publication.* 

7.  For   the  security  of  the  prisoners  and 
witnesses,  and  to  preserve  order  and  decorum 
in  the  trial  and   proceedings,   the   presiding 
officer    will    furnish    a   pass  to  counsel,  wit 
nesses,  officers,  and  such  persons  as  may  be 
allowed  to  pass  the  guard,  and  be  present  at 
the  trial.     No  person  will  be  allowed  to  pass 
the   guard    without    such    pass,    which,    for 
greater  precaution,  will  be  countersigned  by 
the  Special    Provost  Marshal  in  attendance 
upon  the  Court. 

8.  The  argument  of  any  motion  will,  unless 
otherwise  ordered  by  the  Court,  be  limited  to 
five   minutes   by  one   Judge   Advocate,   and 
counsel  on  behalf  of  the  prisoners.     Objec 
tions  to  testimony  will  be  noted  on  the  record, 
and  decided  upon  argument,  limited  as  above, 
on  motions.     When  the  testimony  is  closed, 
the  case  will  be  immediately  summed  up  by 
one  Judge  Advocate,  at  the  discretion  of  the 
Judge  Advocate  General,  and  be  followed  or 
opened,  if  the  Judge  Advocate  General  elects, 
by  counsel  for  the  prisoners,  and  the  argument 
shall  be  closed  by  one  Judge  Advocate. 

9.  The  argument  being  closed,  the  Court 
will  immediately  proceed  duly  to  deliberate 
and  make  its  determination. 

10.  The  Provost   Marshal  will    have   the 
prisoners  in  attendance  during  the  trial,  and 
be   responsible  for   their   security.      Counsel 
may  have  access  to  them  in  the  presence,  but 
not  in  hearing,  of  a  guard. 

11.  The  counsel  for  the  prisoners  will  im 
mediately  furnish  the  Judge  Advocate  Gen 
eral  with  a  list  of  the  witnesses  required  for 
defense,  whose   attendance  will   be  procured 
in  the  usual  manner. 

To  allow  further  time  for  the  accused  to 
secure  and  communicate  with  counsel,  the 
Commission  adjourned  to  meet  on  Thursday, 
May  llth,  at  10  o'clock  A.  M. 

COURT-ROOM,  WASHINGTON,  I).  C.,     1 
May  11.  1865,  10  o'clock  A.M./ 

The  Commission  met  pursuant  to  adjourn 
ment. 

All  the  members  present;  also  the  Judge 
Advocate,  the  Assistant  Judge  Advocates,  and 
all  the  accused. 

The  record  of  preceding  session  was  read 
and  approved. 

The  accused,  SAMUEL  A.  MUDD,  applied  for 
permission  to  introduce  Frederick  Stone,  Esq.. 
and  Thomas  Ewing,  jr.,  Esq.,  as  his  counsel. 

The  accused,  MARY  E.  SURRATT,  applied 
for  permission  to  introduce  Frederick  Aiken, 
Esq.,  and  John  W.  Clampitt,  Esq.,  as  her 


*The  testimony  of  Richard  Montgomery,  Snnford  Con- 
ovpr,  and  James  B.  Merritt  was,  for  prudential  reasons, 
taken  in  secret  session.  At  the  opening  of  the  session,  on 
May  K'.th,  the  Judge  Advocate  announced  that  the  testi 
mony  hereafter  to  be  introduced  might  he  given  to  the.  pub 
lic  without  impropriety  or  embarrassment  to  the  Govern- 
nt,  and  that  the  President  of  the  Commission  would 
grant  permits  for  admission  to  reporters  and  others  to 
an  extent  not  to  interfere  with  the  proceedings  of  th« 
Commission. 


22 


THE  CONSPIRACY   TRIAL. 


counsel,  which  applications  were  granted; 
and  the  aforesaid  counsel,  having  first  taken, 
in  open  Court,  the  oath  prescribed  by  act  of 
Congress,  approved  July  2,  1862,  accordingly 
appeared. 

To  allow  further  time  for  the  accused  to 
secure  the  attendance  of  counsel,  the  Com 
mission  adjourned,  to  meet  on  Friday,  May 
12th,  at  10  o'clock  A.  M. 


COURT-ROOM,  WASHINGTON,  D.  C  .     i 
May  12,  1865,  10  o'clock,  A.  M.  } 

The  Commission  met  pursuant  to  adjourn 
ment. 

All  the  members  present;  also  the  Judge 
Advocate,  the  Assistant  Judge  Advocates,  the 
accused,  and  Messrs.  Ewing,  Stone,  Aiken, 
and  Clampitt,  counsel  for  the  accused. 

The  proceedings  were  read  and  approved. 

The  accused,  DAVID  E.  HEIIOLU,  applied 
for  permission  to  introduce  Frederick  Stone, 
Esq.,  as  his  counsel. 

The  accused,  SAMUEL  ARNOLD,  applied  for 
permission  to  introduce  Thomas  Ewing,  jr., 
Esq.,  as  his  counsel;  which  applications  were 
granted,  and  the  aforesaid  counsel  accordingly 
appeared. 

The  accused,  GEORGE  A.  ATZERODT,  applied 
for  permission  to  introduce  William  E.  Poster, 
Esq.,  as  his  counsel. 

The  accused,  MICHAEL  O'LAUGHLIN,  applied 
for  permission  to  introduce  Walter  S.  Cox, 
Esq.,  as  his  counsel. 

The  accused.  LEWIS  PAYXE,  applied  for 
permission  to  introduce  William  E.  Doster, 
Esq.,  as  his  counsel. 

The  accused,  EDWARD  SPANGLER,  applied 
for  permission  to  introduce  Thomas  Ewing, 
jr.,  Esq.,  as  his  counsel;  which  applications 
were  granted,  and  Messrs.  Doster,  and  Cox, 
having  first  taken,  in  open  Court,  the  oath 
prescribed  by  act  of  Congress,  approved  July 
2,  1862,  accordingly  appeared. 

The  accused,  MARY  E.  SURRATT,  applied 
for  permission  to  introduce  the  Hon.  Reverdy 
Johnson  as  additional  counsel  for  her, 

A  member  of  the  Commission  (General  T. 
M.  Harris)  objected  to  the  admission  of  Mr. 
Johnson  as  counsel  before  the  Commission, 
on  the  ground  that  he  did  not  recognize  the 
moral  obligation  of  an  oath  designed  as  a 
test  of  loyalty,  or  to  enforce  the  obligation  of 
loyalty  to  the  Government  of  the  United 
States,  referring  to  a  printed  letter,  dated  Bal 
timore,  October  7,  1864,  upon  "the  constitu 
tionality,  legal  and  binding  effect  and  bearing 
of  the  oath  prescribed  by  the  late  Convention 
of  our  State,  to  be  taken  by  the  voters  of  the 
State  as  the  condition  and  qualification  of  the 
right  to  vote  upon  the  New  Constitution." 

The  letter,  published  over  the  signature  of 
the  Hon.  Reverdy  Johnson,  pending  the  adop 
tion  of  the  New'  Constitution  of  Maryland, 
contained  the  following  passage: 

"Because  the  Convention  transcended  its 
power,  as  I  am  satisfied  it  has,  that  is  no 
reason  why  the  people  should  submit.  On 


the  contrary,  it  should  lead  them  to  adopt 
the  only  course  left  to  redress  the  wrong. 
The  taking  of  the  oath  under  such  circum 
stances,  argues  no  unwillingness  to  surrender 
their  rights.  It  is  indeed  the  only  way  in 
which  they  can  protect  them,  and  no  moral 
injunction  will  be  violated  by  such  a  course, 
because  the  exaction  of  the  oath  was  beyond 
the  authority  of  the  Convention,  and,  as  a 
law,  is  therefore  void." 

MR.  JOHNSON.  The  Convention  called  to 
frame  a  new  Constitution  for  the  State  was 
called  under  the  authority  of  an  act  of  the 
Legislature  of  Maryland,  and  under  that 
alone.  By  that  legislation,  their  proceedings 
were  to  be  submitted  to  the  then  legal  voters 
of  the  State.  The  Convention  thought  that 
they  were  themselves  authorized  not  only  to 
impose  as  an  authority  to  vote  what  was  not 
imposed  by  the  then  existing  Constitution 
and  laws,  but  to  admit  to  vote  those  who 
were  prohibited  from  voting  by  such  Con 
stitution  and  laws;  and  I  said,  in  common 
with  the  whole  bar  of  the  State,  (and  with 
what  the  bar  throughout  the  Union  would 
have  said  if  they  had  been  consulted,)  that 
to  that  extent  they  had  usurped  the  author 
ity  under  which  alone  they  were  authorized 
to  meet,  and  that,  so  far,  the  proceeding  was 
a  nullity.  They  had  prescribed  this  oath ; 
and  all  that  the  opinion  said,  or  was  intended 
to  say,  was  that  to  take  the  oath  voluntarily 
was  not  a  craven  submission  to  usurped  au 
thority,  but  was  necessary  in  order  to  enable 
the  citizen  to  protect  his  rights  under  the 
then  Constitution,  and  that  there  was  no 
moral  harm  in  taking  an  oath  which  the 
Convention  had  no  authority  to  impose. 

The  objection  being  then  withdrawn,  Mr. 
Johnson  accordingly  appeared  as  counsel  for 
Mrs.  Mary  E.  Surratt. 

The  accused,  David  E.  Herold,  George  A. 
Atzerodt,  Lewis  Payne,  Michael  O'Laughlin, 
Edward  Spangler,  Samuel  Arnold,  Mary  E. 
Surratt,  and  Samuel  A.  Mudd.  severally, 
through  their  counsel,  asked  leave  to  with 
draw  for  the  time  their  plea  of  "  Not  Guilty" 
heretofore  filed,  so  that  they  may  plead  to  the 
jurisdiction  of  the  Commission. 

The  applications  were  granted. 

The  accused  then  severally  offered  a  plea 
to  the  jurisdiction  of  the  Commission  as  fol 
lows  : 

one  of  the   accused,    for   plea, 

says  that  this  court  has  no  jurisdiction  in  the 
proceeding  against  him,  because  he  says  he  is 
not,  and  has  not  been,  in  the  military  service 
of  the  United  States. 

And,  for  further  plea,  the  said  — 
says  that  loyal  civil  courts,  in  which  all  the 
offenses  charged  are  triable,  exist,  and  are  in 
full  and  free  operation  in  all  the  places  where 
the  several  offenses  charged  are  alleged  to 
have  been  committed. 

And,   for  further  plea,  the  said 

says  that  the  court  has  no  jurisdiction  in  the 


JURISDICTION   OF   THE    COMMISSION. 


23 


matter  of  the  alleged  conspiracy,  so  far  as  it  is 
charged  to  have  been  a  conspiracy  to  murder 
Abraham  Lincoln,  late  President  of  the  United 
States,  and  William  H.  Seward,  Secretary  of 
State,  because  he  says  said  alleged  conspiracy, 
and  all  acts  alleged  to  have  been  done  in  the 
formation  and  in  the  execution  thereof,  are 
in  the  charges  and  specifications  alleged  to 
have  been  committed  in  the  City  of  Washing 
ton,  in  which  city  are  loyal  civil  courts,  in  full 
operation,  in  which  all  said  offenses  charged 
are  triable. 

And  the  said ,  for  further  plea, 

says  this  Court  has  no  jurisdiction  in  the 
matter  of  the  crime  of  murdering  Abraham 
Lincoln,  late  President  of  the  United  Statee, 
and  William  H.  Seward,  Secretary  of  State, 
because  he  says  said  crimes  and  acts  done  in 
execution  thereof  are  in  the  charges  and 
specifications  alleged  to  have  been  committed 
in  the  City  of  Washington,  in  which  city  are 
loyal  civil  courts,  in  full  operation,  in  which 
said  crimes  are  triable. 

Signed  on  behalf  of  the  accused  by  counsel. 

The  Judge  Advocate  then  presented  the 
following  replication : 

Now  come  the  United  States,  and  for  an 


swer  to  the  special  plea  by  one  of  the  defend 
ants,  ,  pleaded  to  the  jurisdiction 

of  the  Commission  in  this  case,  say  that  this 
Commission  has  jurisdiction  in  the  premises 
to  try  and  determine  the  matters  in  the  Charge 
and  Specification  alleged  and  set  forth  against 

the  said  defendant, . 

J.  HOLT, 
Judge  Advocate  General 

The  Court  was  then  cleared  for  deliberation, 
and  on  being  re-opened,  the  Judge  Advocate 
announced  that  the  pleas  of  the  accused  had 
been  overruled  by  the  Commission. 

The  accused  then  severally  made  applica 
tion  for  severance  as  follows  : 

,  one  of  the  accused,  asks  that 

he  be  tried  separate  from  those  who  are 
charged  jointly  with  him,  for  the  reason  that 
he  believes  his  defense  will  be  greatly  preju 
diced  by  a  joint  trial. 

Signed  by  counsel  on  behalf  of  accused. 

The  Commission  overruled  the  application 
for  a  severance. 

The  accused  then  severally  pleaded : 

To  the  Specification "Not  Guilty.'' 

To  the  Charge "Not  Guilty." 


TESTIMONY 


RELATING  TO   THE   GENERAL   CONSPIRACY. 


RICHARD   MONTGOMERY. 
Witness  for  the  Prosecution.— May  12,  1865. 

I  visited  Canada  in  the  summer  of  1864, 
and,  excepting  the  time  I  have  been  going 
backward  and  forward,  have  remained  there 
until  about  two  weeks  ago.  I  know  George 
N.  Sanders,  Jacob  Thompson,  Clement  C. 
Clay,  Professor  Holcomb,  Beverly  Tucker, 
W.  C.  Cleary,  and  Harrington.  I  have  fre 
quently  met  these  persons,  since  the  summer 
of  1864,  at  Niagara  Falls,  at  Toronto,  St. 
Catherines,  and  at  Montreal.  Thompson 
passed  by  several  other  names,  one  of  which 
was  Carson.  Clay  passed  by  the  name  of 
Hope,  also  Tracy,  and  another  was  T.  E. 
Lacy. 

In  a  conversation  1  had  with  Jacob 
Thompson,  in  the  summer  of  1864,  he  said 
he  had  his  friends  (Confederates)  all  over  the 
Northern  States,  who  were  ready  and  willing 
to  go  any  lengths  to  serve  the  cause  of  the 
South ;  and  he  added  that  he  could  at  any 
time  have  the  tyrant  Lincoln,,  and  any  other 
of  his  advisers  that  he  chose,  put  out  of  his 
way;  he  would  have  but  to  point  out  the 
man  that  he  considered  in  his  way,  and  his 
friends,  as  he  termed  them,  would  put  him 
out  of  it,  and  not  let  him  know  any  thing 
about  it  if  necessary;  and  that  they  would 
not  consider  it  a  crime  when  done  for  the 
cause  of  the  Confederacy. 

Shortly  after  Mr.  Thompson  told  me  what 
lie  was  able  to  do,  I  repeated  the  conversa 
tion  to  Mr.  Clay,  who  said,  "That  is  so;  we 
are  all  devoted  to  our  cause,  and  ready  to 
go  any  lengths — to  do  any  thing  under  the 
sun  to  serve  our  cause." 

In  January  of  this  year,  I  saw  Jacob 
Thompson  in  Montreal  several  times,  in  one 
of  these  conversations  he  said  a  proposition 
had  been  made  to  him  to  rid  the  world  of 
the  tyrant  Lincoln,  Stanton,  Grant,  and  some 
others.  The  men  who  had  made  the  propo 
sition,  he  said,  he  knew  were  bold,  daring 
men,  and  able  to  execute  any  thing  they 
would  undertake,  without  regard  to  the  cost. 
(24  > 


He  said  he  was  in  favor  of  the  proposition, 
but  had  determined  to  defer  his  answer  until 
he  had  consulted  with  his  Government  at 
Richmond,  and  he  was  then  only  waiting 
their  approval.  He  added  that  he  thought 
it  would  be  a  blessing  to  the  people,  both 
North  and  South,  to  have  these  men  killed. 

I  have  seen  Lewis  Payne,  the  prisoner  at 
the  bar,  in  Canada.  I  saw  him  at  the  Falls 
in  the  summer  of  1864.  I  saw  him  again, 
and  had  some  words  with  him,  at  the  Queen's 
Hotel  in  Toronto.  I  had  had  an  interview 
with  Mr.  Thompson,  and  on  leaving  the  room 
I  met  this  man  Payne  in  the  passage  way, 
talking  with  Mr.  Clement  C.  Clay.  Mr.  Clay 
stopped  me,  and  held  my  hand,  finishing  his 
conversation  with  Payne  in  an  undertone, 
and  when  he  left  me  for  a  moment  he  said, 
"Wait  for  me;  I  will  return."  He  then 
went  and  spoke  to  some  other  gentleman 
who  was  entering  Mr.  Thompson's  door,  and 
then  came  back  and  bade  me  good-by,  ask 
ing  where  he  could  see  me  in  half  an  hour, 
I  told  him,  and  made  an  appointment  to 
meet  him.  While  Mr.  Clay  was  away,  I 
spoke  to  this  man  Payne,  and  asked  him 
who  he  was.  I  commenced  talking  about 
some  of  the  topics  usually  spoken  of  in  con 
versation  among  these  men.  He  rather  hesi 
tated  about  telling  me  who  he  was.  He  said, 
"0,  I  am  a  Canadian;"  by  which  I  under 
stood  that  I  was  not  to  question  him  further. 
In  about  half  an  hour  afterward  1  asked  Mr. 
Clay  who  this  man  Payne  was,  and  he  said, 
"  What  did  he  say?"  I  told  him  that  he  said 
he  was  a  Canadian.  Mr.  Clay  laughed  and 
said,  "That  is  so;  he  is  a  Canadian;  and," 
he  added,  "we  trust  him." 

The  term  "Canadian"  was  a  common  ex 
pression  among  the  Confederates  there,  and 
was  applied  to  those  who  were  in  the  habit 
of  visiting  the  States;  and  I  understood  from 
Mr.  Clay's  laugh  that  their  intercourse  wae 
of  a  confidential  nature. 

I  have  been  in  Canada  since  the  assas 
sination.  A  few  days  after,  I  met  Beverly 
Tucker  at  Montreal.  He  said  a  great  utal 


TESTIMONY  OF  KICIIARD   MONTGOMERY. 


25 


about  the  wrongs  that  the  South  had  re 
ceived  at  the  hands  of  Mr.  Lincoln,  and  that 
he  deserved  his  death,  and  it  was  a  pity  he 
did  not  meet  with  it  long  ago.  He  said  it 
was  too  bad  that  the  boys  had  not  been 
allowed  to  act  when  they  wanted  to.  "The 
boys"  was  an  expression  applied  to  the  Con 
federate  soldiers  and  others  in  their  employ, 
who  engaged  in  raids,  and  who  were  to  as 
sassinate  the  President. 

1  related  a  portion  of  the  conversation  I 
had  had  with  Mr.  Thompson  to  Mr.  W.  C. 
Cleary,  who  is  a  sort  of  confidential  secretary 
to  Mr.  Thompson,  and  he  told  me  that 
Booth  was  one  of  the  parties  to  whom 
Thompson  had  reference;  and  he  said,  in  re 
gard  to  the  assassination,  that  it  was  too  bad 
that  the  whole  work  had  not  been  done ;  by 
which  I  understood  him  to  mean  that  they 
intended  to  assassinate  a  greater  number  than 
they  succeeded  in  killing.  Cleary  remarked, 
when  speaking  of  his  regret  that  the  whole 
work  had  not  been  done,  "  They  had  better 
look  out;  we  have  not  done  yet."  And  he 
added  that  they  would  never  be  conquered — 
would  never  give  up. 

Cleary  said  that  Booth  had  been  there,  visit 
ing  Thompson,  twice  in  the  winter;  he  thought 
the  last  time  was  in  December.  He  had  also 
been  there  in  the  summer. 

Thompson  told  me  that  Cleary  was  posted 
upon  all  his  affairs,  and  that  if  I  sought  him 
(Thompson)  at  any  time,  and  he  was  away,  I 
might  state  my  business  to  Mr.  Cleary,  and 
it  would  be  all  the  same;  that  I  could  have 
perfect  confidence  in  him,  and  that  he  was 
a  very  close-mouthed  man. 

On  my  return  to  Canada,  a  few  days  after 
the  assassination,  I  found  that  those  parties 
supposed  that  they  were  suspected  of  the 
assassination.  They  expected  to  be  indicted 
in  Canada,  for  a  violation  of  the  neutrality 
law,  a  number  of  days  before  they  were  in 
dicted,  and  they  told  me  they  were  destroy 
ing  a  great  many  of  their  papers.  Tucker 
and  Cleary  both  told  me  they  were  destroy 
ing  their  papers.  Tucker  said,  in  an  inter 
view  I  had  with  him  after  my  return,  that 
it  was  too  bad  they  had  riot  been  allowed  to 
act  when  they  wanted  to. 

[A  paper  containing  a  secret  cipher,  found  among  J. 
Wilkes  Booth's  eft'ccts,  introduced  in  evidence,  was  here 
handed  to  the  witness.  ] 

I  am  familiar  with  two  of  the  secret  ciphers 
used  by  the  Confederates;  this  is  one  of  them. 
1  saw  this  cipher  in  1864,  in  Mr.  Clay's 
house — the  private  house  in  which  I  was 
stopping  at  St.  Catherines. 

During  my  stay  in  Canada  I  was  in  the 
service  of  the  United  States  Government, 
seeking  to  acquire  information  in  regard  to 
the  plans  and  purposes  of  the  rebels  who 
were  assembled  there.  To  do  this  most 
effectually,  I  adopted  the  name  of  James 
Thompson  ;  and  leading  them  to  suppose  this 
was  my  correct  name,  I  adopted  some  other 
name  at  any  hotel  at  which  I  might  be 


j  stopping.  I  was  intrusted  with  dispatches 
from  these  Confederates  to  take  to  Rich 
mond.  I  carried  some  to  Gordon.sville,  with 
instructions  to  send  them  from  there.  I  re 
ceived  a  reply  to  these  dispatches,  which  I 
carried  back  to  Canada,  bringing  them 
through  Washington,  and  making  them 
known  to  the  United  States  Government.  I 
took  no  dispatches  from  the  rebel  Govern 
ment  to  their  agents  in  Canada  without  first 
delivering  them  to  the  authorities  at  Wash 
ington. 

I  received  a  dispatch  at  Gordonsville  from 
a  gentleman  who  represented  himself  as 
being  in  the  rebel  State  Department,  and 
sent  by  their  Secretary  of  State.  This  dis 
patch  I  delivered  to  Mr.  Thompson  in  Octo 
ber.  Thompson,  Clay,  Cleary,  and  others 
represented  themselves  as  being  in  the  service 
of  the  Confederate  Government, 

I  frequently  heard  the  subject  of  raids  upon 
our  frontier,  and  the  burning  of  cities,  spoken 
of  by  Thompson,  Clay,  Cleary,  Tucker,  and 
Sanders.  Mr.  Clement  C.  Clay  was  one  of 
the  prime  movers  in  the  matter  before  the 
raids  were  started.  They  received  his  direct 
indorsement.  He  represented  himself  to  me 
as  being  a  sort  of  representative  of  their  War 
Department  at  Richmond.  The  men  1  have 
reference  to,  more  especially  Mr.  Clay  and 
Mr.  Thompson,  represented  that  they  were 
acting  under  the  sanction  of  their  Govern 
ment,  and  as  having  full  power  to  act  with 
reference  to  that;  that  they  had  full  power  to 
do  any  thing  that  they  deeemed  expedient  and 
for  the  benefit  of  their  cause. 

I  was  in  Canada  when  arrangements  were 
made  to  fire  the  City  of  New  York.  I  left 
Canada  to  bring  the  news  to  Washington, 
two  days  before  the  attempt  was  made.  It 
originated  in  Canada,  and  had  the  full  sanc 
tion  of  these  men. 

Before  the  St.  Albans'  raid  I  knew  of  it; 
I  was  not,  however,  aware  of  the  precise  point 
aimed  at,  but  I  informed  the  Government  at 
Washington  that  these  men  were  about  setting 
out  on  a  raid  of  that  kind.  I  also  informed 
the  Government  of  the  intended  raids  upon 
Buffalo  and  Rochester,  and  by  that  means 
prevented  them.  I  heard  Mr.  Clay  say,  in 
speaking  about  the  funds  for  paying  these 
raids,  that  he  always  had  plenty  of  money 
to  pay  for  any  thing  that  was  worth  paying 
for.  I  know  that  they  had  funds  deposited 
in  several  different  banks.  They  transacted 
considerable  business  with  one  which  is,  I 
think,  called  the  Niagara  District  Bank;  it 
was  almost  opposite  to  Mr.  Clay's  residence 
in  St.  Catherines. 

With  respect  to  George  N.  Sander's  posi 
tion,  Mr.  Clay  told  me  1  had  better  not  tell 
him  all  the  things  I  was  bent  upon,  nor  all 
the  things  they  intrusted  to  me;  that  he  was 
a  very  good  man  to  do  their  dirty  work. 
Those  were  Mr.  Clay's  words.  lie  said 
Sanders  was  associated  with  men  that  they 
could  not  associate  with;  but  that  he  was 


26 


THE    CONSPIRACY    TRIAL. 


very  useful  in  that  way — a  very  useful  man 
indeed. 

When  Mr.  Jacob  Thompson  spoke  to  me 
of  the  assassination,  in  January  of  this  year, 
he  said  he  was  in  favor  of  the  proposition 
that  had  been  made  to  him  to  put  the 
President,  Mr.  Stan  ton,  General  Grant,  and 
others  out  of  the  way ;  but  had  deferred 
giving  his  answer  until  he  had  consulted  his 
Government  at  Richmond,  and  that  he  was 
only  waiting  their  approval.  I  do  not  know, 
of  my  own  knowledge,  that  he  received  an 
answer;  my  impression,  from  what  Beverly 
Tucker  said,  was  that  he  had  received  their 
answer  and  their  approval,  and  that  they  had 
been  detained  waiting  for  that. 

Cross-examined  by  MR,  AIKEN. 
I  am  originally  from  New  York  City.  I 
received  from  the  Confederate  Government, 
for  going  to  Gordonsville  with  those  dis 
patches,  equivalent  to  $150,  in  greenbacks. 
I  reported  that  fact  to  the  War  Department 
at  Washington,  and  applied  it  on  my  ex 
pense  account  as  having  been  received 
from  the  United  States  Government.  On  my 
return  from  Gordonsville,  I  handed  the 
original  dispatches  over  to  the  authorities 
here.  All  those  they  selected  to  go  ahead 
I  carried  on  ;  all  those  they  did  not,  they 
retained. 

Recalled  for  the  Prosecution. — June  12. 

JA  papei-  was  here  handed  to  the  witness  by  the  Judge 
vocate.  J 

That  paper  I  received  from  Clement  C. 
Clay,  jr.,  on  the  evening  of  the  1st  or  2d  of 
November,  1804.  I  saw  Mr.  Clay  write  a 
very  considerable  portion  of  it  myself,  and  a 
part  of  the  letter  was  written  with  my  own 
pen.  It  was  written  in  his  house,  in  St. 
Catherines,  Canada  West,  which,  I  believe,  is 
on  Park  Street.  I  delivered  a  copy  of  that 
letter  to  the  Hon.  C.  A.  Dana,  Secretary  of 
War,  here  in  Washington.  I  was  instructed 
to  deliver  the  original  to  Mr.  Benjamin,  Sec 
retary  of  State  of  the  Confederate  States,  if  I 
could  get  to  Richmond,  and  to  tell  him  that 
I  was  informed  of  the  names  that  were  to  be 
inserted  in  the  blanks  in  the  original  letter. 
There  are  two  or  three  such  blanks  left  for 
names.  There  was  no  signature  to  the  letter, 
which  was  omitted  principally  for  my  safety, 
and  also  that,  in  the  event  of  its  being  seize'd, 
it  could  not  be  used  as  evidence  against  Mr. 
Clay.  Both  of  these  reasons  were  given  to 
me  'by  Mr.  Clay.  Mr.  Clay  left  Canada  about 
the  1st  of  January. 

[  The  original  of  the  following  letter  was  then  read  and 
put  in  evidence:] 

ST.  CATHERINES,  C.  W.,  November  1,  1864. 
Hon.  J.  P.  Benjamin,  Secretary  of  State,  Rich 
mond,  Virginia : 

SIR:  You  have  doubtless  learned,  through 
the  press  of  the  United  States,  of  the  raid  on 
St.  Albans,  Vermont,  by  about  twenty-five 
Confederate  soldiers — nearly  all  of  them  es 


caped  prisoners — led  by  Lieutenant  Bennett 
H.  Young;  of  their  attempts  and  failure  to 
burn  the  town;  and  of  their  robbery  of  three 
!  hanks  there  of  the  aggregate  amount  of  about 
!  £-!00,000;  of  their  arrest  in  Canada  by  United 
States  forces,  their  commitment,  and  the  pend 
ing  preliminary  trial.  There  are  twelve  or 
fourteen  of  the  twenty-five  who  have  been 
arrested,  and  are  now  in  prison  at  Montreal, 
where  the  trial  for  commitment  for  extradi 
tion  is  now  progressing.  A  letter  from  Hon. 
J.  J.  N.  Abbott,  the  leading  counsel  for  the 
prisoners,  dated  Montreal,  28th  October,  says 
to  me:  "We  (prisoners'  counsel)  all  think  it 
quite  clear  that  the  facts  will  not  justify  a  com 
mitment  for  extradition  under  the  law  as  it 
stands,  and  we  conceive  the  strength  of  our 
position  to  consist  in  the  documents  we  hold, 
establishing  the  authority  of  the  raiders  from 
the  Confederate  States  Government,  But 
there  is  no  doubt  that  this  authority  might 
be  made  more  explicit  than  it  is,  in  so  far  as 
regards  the  particular  acts  complained  of,  and 
I  presume  the  Confederate  Government  will 
consider  it  to  be  their  duty  to  recognize  offi 
cially  the  acts  of  Lieutenant  Young  and  his 
party,  and  will  find  means  to  convey  such 
recognition  to  the  prisoners  here,  in  such  a 
form  as  can  be  proven  before  our  courts.  If 
this  were  accompanied  or  followed  by  a  de 
mand  upon  our  Government  that  the  pris 
oners  be  set  at  liberty,  I  think  a  good  effect 
would  be  produced,  although  probably  the 
application  would  not  be  received  by  the  au 
thorities.  There  will  be  at  least  a  fortnight's 
time,  and  probably  more,  expended  in  the  ex 
animation  of  witnesses;  so  that  there  will  be 
plenty  of  time  for  any  thing  that  may  be 
thought  advisable  to  be  done  in  behalf  of  the 
prisoners." 

1  met  Mr.  Young  at  Halifax,  on  my  way 
here,  in  May  last.  He  showed  me  letters 
from  men  whom  1  know,  by  reputation,  to  be 
true  friends  of  States'  rights,  and  therefore 
of  Southern  independence,  vouching  for  his 
integrity  as  a  man,  his  piety  as  a  Christian, 
and  his  loyalty  as  a  soldier  of  the  South. 
After  satisfying  me  that  his  heart  was  with  us 
in  our  struggle,  and  that  he  had  suffered  im 
prisonment  for  many  months  as  a  soldier  of 
the  Confederate  States  army,  from  which  he 
had  escaped,  he  developed  his  plans  for  retal 
iating  on  the  enemy  some  of  the  injuries  and 
outrages  inflicted  upon  the  South.  I  thought 
them  feasible  and  fully  warranted  by  the  law 
of  nations,  and  therefore  recommended  him 
and  his  plans  to.  the  Secretary  of  War.  He 
was  sent  back  by  the  Secretary  of  War,  with 
a  commission  as  Second  Lieutenant,  to  exe 
cute  his  plans  and  purposes,  but  to  report  to 

Hon.  and    myself.     We    prevented   his 

achieving  or  attempting  what  I  am  sure  he 
could  have  done,  for  reasons  which  may  be 
fully  explained  hereafter.  Finally,  disap 
pointed  in  his  original  purpose  and  in  all  the 
subsequent  enterprises  projected,  he  proposed 
to  return  to  the  Confederate  States,  via  Ilali- 


TESTIMONY  OF   RICHARD    MONTGOMERY. 


27 


fax,  but  passing  through  the  New  England 
8tat.es,  and  burning  some  towns,  and  robbing 
them  of  whatever  he  could  convert  to  the  use 
of  the  Confederate  Government.  This  I  ap 
proved  as  justifiable  retaliation.  He  at 
tempted  to  burn  the  town  of  St.  Albans, 
Vermont,  and  would  have  succeeded  but  for 
the  failure  of  the  chemical  preparations  with 
which  he  was  armed.  Believing  the  town 
was  already  fired  in  several  places,  and  must 
be  destroyed,  he  then  robbed  the  banks  of  all 
the  funds  he  could  find — amounting  to  more 
than  $'200,000.  That  he  was  not  prompted 
by  selfish  or  mercenary  motives,  and  that  he 
did  not  intend  to  convert  the  funds  taken  to 
his  own  use,  but  to  that  of  the  Confederate 
States,  1  am  as  well  satisfied  as  I  am  that  he 
is  an  honest  man,  a  true  soldier,  and  patriot; 
and  no  one  who  knows  him  well  will  ques 
tion  his  title  to  this  character.  He  assured 
me,  before  going  on  the  raid,  that  his  efforts 
would  be  to  destroy  towns  and  farm  houses, 
not  to  plunder  or  rob;  but  he  said  if,  after 
firing  a  town,  he* saw  he  could  take  funds 
from  a  bank,  or  any  house,  which  might  in 
flict  injury  on  the  enemy  and  benefit  his  own 
Government,  he  would  do  so.  He  added, 
most  emphatically,  that  whatever  he  took 
should  be  turned  over  to  the  government  or 
its  representatives  in  foreign  lands.  My  in 
structions  to  him,  oft  repeated,  were  "to 
destroy  whatever  was  valuable;  not  to  stop 
to  rob;  but  if,  after  firing  a  town,  he  could 
seize  and  carry  off  money,  or  treasury  or 
bank  notes,  he  might  do  so,  upon  condition 
that  they  were  delivered  to  the  proper  au 
thorities*  of  the  Confederate  States."  That 
they  were  not  delivered  according  to  his 
promise  and  undertaking  was  owing,  I  am 
sure,  to  the  failure  of  his  chemical  compound 
to  fire  the  town,  and  to  the  capture  of  him 
self  and  men  on  Canadian  soil,  where  they 
were  surprised  and  overpowered  by  superior 
numbers  from  the  United  States.  On  show 
ing  me  his  commission  and  his  instructions 
from  Mr.  Seddon — which  were,  of  course, 
vague  and  indefinite — he  said  he  was  au 
thorized  to  do  all  the  damage  he  could  to  the 
enemy  in  the  way  of  retaliation.  If  this  be 
true,  it  seems  to  me  the  Confederate  States 
Government  should  not  hesitate  to  avow  his 
act  was  fully  authorized  as  warrantable  re 
taliation.  If  the  Government  do  not  assume 
the  responsibility  of  this  raid,  I  think  Lieu 
tenant  Y.  and  his  men  will  be  given  up  to 
the  United  States  authorities.  If  so,  I  fear  the 
exasperated  and  alarmed  people  of  Vermont 
will  exert  cruel  and  summary  vengeance 
upon  them  before  they  reach  the  prison  at 
St.  Albans. 

The  sympathies  of  nine-tenths  of  the  Can 
adians  are  with  Young  and  his  men;  a  ma 
jority  of  all  the  newspapers  justify  or  excuse 
his  act  as  merely  retaliatory,  and  they  desire 
only  the  authority  of  the  Confederate  States 
Government  for  it  to  refuse  their  extradition. 
TJie  refusal  of  extradition  is  fully  warranted 


I  by  the  like  course  of  the  United  States  in 
j  many  cases,  cited  lately  in  the  Canadian  pa 
pers,  which  I  can  not  now  repeat,  but  which 
you  can  readily  find.  The  refusal  of  extra 
dition  would  have  a  salutary  political  influ 
ence,  it  is  thought,  both  in  the  British  Prov 
inces  and  in  England.  I  can  not  now  explain 
why.  I  trust,  therefore,  for  the  sake  not  only 
of  the  brave  soldiers  who  attempted  this  dar 
ing  exploit,  (which  has  caused  a  panic  through 
out  the  United  States  bordering  on  Canada, 
and  the  organization  of  forces  to  resist,  as 
well  as  the  arbitrary  and  tyrannous  order  of 
General  Dix  touching  the  coming  Presidential 
election,)  but,  for  the  sake  of  our  cause  and 
country,  that  the  President  will  assume  the 
responsibility  of  the  act  of  Lieutenant  Bennett 
II,  Young,  and  that  you  will  signify  it  in  such 
form  as  will  entitle  it  to  admission  as  evidence 
in  the  pending  trial. 

I  send  the  special  messenger  who  brings 
this,  that  your  answer  may  be  brought  back 
by  him  within  ten  days  or  by  llth  instant. 
The  final  judgment  can  and  will  be  post 
poned  for  the  action  of  the  Confederate  States 
Government  as  long  as  possible — certainly 
for  ten  days. 

I  avail  myself  of  this  opportunity  to  bring 
to  your  notice  the  case  of  Captain  Charles  H. 
Cole,  another  escaped  prisoner  of  General  For 
rest's  command,  who  was  taken  about  six 
weeks  since  in  the  Michigan,  (the  Federal  war 
steamer  on  Lake  Erie,)  and  is  charged  with 
an  attempt  at  piracy,  (for  attempting  to  cap 
ture  the  vessel,)  with  being  a  spy,  etc.  The 
truth  is,  that  he  projected  and  came  very  near 
executing  a  plan  for  the  capture  of  that  ves 
sel  and  the  rescue  of  the  prisoners  on  John 
son's  Island.  He  failed  only  because  of  the 
return  of  the  Captain  (Carter)  of  the  Michi 
gan  a  day  sooner  than  expected,  and  the  be 
trayal  (in  consequence  of  C.'s  return)  of  the 
entire  plot.  The  only  plausible  ground  for 
charging  him  with  being  a  spy  is  that  he 
was  in  Sandusky,  on  Johnson's  Island,  and 
in  the  Michigan  frequently,  without  having 
on  his  person  the  Confederate  uniform,  but 
wearing  the  dress  of  a  private  citizen.  Mr. 

and   I   have  addressed  a  letter  to  the 

commandant  at  Johnson's  Island,  protesting 
against  his  being  treated  as  a  spy  for  the 
following  reasons:  "That  he  was  in  the  ter 
ritory  of  the  United  States  as  a  prisoner 
against  his  consent;  that  he  escaped  by 
changing  his  garb;  that  he  had  no  Confed 
erate  uniform  when  he  visited  Sandusky, 
Johnson's  Island,  and  the  Michigan;  that  he 
did  not  visit  them  as  an  emissary  from  the 
Confederate  States;  that  whatever  he  con 
ceived,  he  had  not  executed  any  thing;  that 
he  had  conveyed  no  information  to  his  Gov 
ernment,  and  did  not  contemplate  conveying 
any  information  to  the  Government."  His 
trial  has  been  postponed.  I  know  not  why, 
or  to  what  time.  His  exchange  should  be  pro 
posed,  and  notice  given  that  any  punishment 
inflicted  on  him  will  be  retaliated  upon  an 


28 


THE    CONSPIRACY   TRIAL. 


officer  of  equal  rank.  He  is  a  very  brave 
arid  daring  soldier  and  patriot,  and  deserves 
the  protection  of  his  Government. 

I  wrote  to  you  on  the  14th  of  June;  to  the 
President,  25th  July;  and  to  you  again  on  the 
llth  August  and  12th  September  last.  I 
trust  you  received  those  letters.  Mr.  II. 
(who,  1  see.  has  gotten  into  the  Confederate 
States)  has  doubtless  explained  things  here. 
I  have  never  received  a  line  from  you  or  any 
person,  except  my  brother,  at  Richmond. 

I  have  not  changed  the  views  expressed  in 
my  former  communications.  All  that  a  large 
portion  of  the  Northern  people — especially  in 
the  North-west — want  to  resist  the  oppres 
sions  of  the  despotism  at  Washington,  is  a 
leader.  They  are  ripe  for  resistance,  and  it 
may  come  soon  after  the  Presidential  election. 
At  all  events,  it  must  come,  if  our  armies  are 
not  overcome  and  destroyed  or  dispersed. 
No  people  of  the  Anglo-Saxon  blood  can 
long  endure  the  usurpations  and  tyrannies 
of  Lincoln.  Democrats  are  more  hated  by 
Northern  Republicans  than  Southern  rebels, 
and  will  be  as  much  outraged  and  persecuted 
if  Lincoln  is  re-elected.  They  must  yield  to 
a  cruel  and  disgraceful  despotism  or  fight. 
They  feel  it  and  know  it. 

I  do  not  see  that  I  can  achieve  any  thing 
by  remaining  longer  in  this  Province,  and, 
unless  instructed  to  stay,  shall  leave  here  by 
20th  instant  for  Halifax,  and  take  my  chances 
for  running  the  blockade.  If  I  am  to  stay 
till  spring,  I  wish  my  wife  to  join  me  under 
flag  of  truce,  if  possible.  I  am  afraid  to 
risk  a  winter's  residence  in  this  latitude  and 
climate. 

I  need  not  sign  this.  The  bearer  and  the 
person  to  whom  it  is  addressed  can  identify 
me. 

But  I  see  no  reasons  why  your  response 
should  not  be  signed  and  sealed,  so  as  to 
make  it  evidence,  as  suggested,  in  respect  to 
the  St.  Albans'  raid.  A  statement  of  pris 
oners'  counsel  has  been  sent  by  way  of  Hal 
ifax  and  Wilmington,  but  it  may  never  reach 
you,  or  not  in  time  for  the  deliverance  of  the 
prisoners.  This  is  my  chief  reason  for  send 
ing  this  by  one  I  can  trust.  Please  reply 
promptly,  and  start  the  messenger  back  as 
soon  as  possible.  He  will  explain  the  char 
acter  of  his  mission.  Send  under  a  seal  that 
can  not  be  broken  without  being  discovered. 

I  am  respectfully,  your  most  obedient 
servant. 

N.  B.  See  the  Secretary  of  War  (Mr.  Sed- 
don)  touching  Young's  case. 

Recalled  for  the  Prosecution. — June  13. 

The  time  occupied  to  go  by  rail  from  Mon 
treal  to  Washington  City,  is  between  thirty- 
six  and  thirty-eight  hours.  The  train  which 
leaves  Montreal  at  3  o'clock  in  the  afternoon 
connects  with  trains  for  Washington,  so  that 
a  person  leaving  at  3  o'clock  on  the  afternoon 
of  the  12th,  would  certainly  reach  Washing 
ton  before  daylighton  the  morning  of  the  14th. 


WILLIAM  H.  ROHRER. 
For  the  Prosecution. — June  13. 
I  am  acquainted  with  Clement  C.  Clay,  jr., 
formerly  of  the  United  States  Senate.     1'have 
had  opportunities  for  becoming  well  acquaint 
ed  with  his  handwriting.     I  have  examined 
the  paper  that  has  been  testified  to  by  Richard 
Montgomery,  and    from    memory  and    com 
parison,  I  have  no  hesitation  in  pronouncing 
it  the  writing  of  Clement  C.  Clay. 

SANFORD  COXOVER. 
For  the  Prosecution. — May  20. 

I  was  born  in  New  York,  and  educated 
there.  Since  October  last,  I  have  resided  in 
Montreal,  Canada.  Previous  to  that,  I  re 
sided  a  short  time  in  Baltimore.  Before  that, 
I  was  conscripted,  from  near  Columbia,  S.  C., 
into  the  rebel  service,  but  was  detailed  as  a 
clerk,  and  served  as  such  in  the  rebel  War 
Department  at  Richmond,  for  upward  of  six 
months.  Mr.  James  A.  Seddon  was  at  that 
time  the  rebel  Secretary  of-  War.  1  "  ran  the 
blockade"  from  Richmond,  by  walking  most 
of  the  way.  I  rode  on  the  cars  to  Hanover 
Junction,  and  from  there  walked  up  through 
Snickersville  to  Charlestown,  Va.,  and  from 
there  to  Harper's  Ferry,  and  so  on. 

While  in  Canada,  I  was  intimately  ac 
quainted  with  George  N.  Sanders,  Jacob 
Thompson,  Clement  C.  Clay,  Dr.  Blackburn, 
Beverly  Tucker,  William  C.  Cleary,  Lewis 
Castleman,  Rev.  M.  Cameron,  Mr.  Porterfield, 
Captain  Magruder,  General  Frost  of  Mis 
souri,  General  Carroll  of  Tennessee,  and  a 
number  of  others  of  less  note.  Of  the  ac 
cused  who  visited  these  persons,  I  knew  John 
Wilkes  Booth  and  John  II.  Surratt.  Booth 
I  saw  but  once.  That  was  in  the  latter  part 
of  October  last,  I  think  I  saw  him  with 
Sanders,  and  also  at  Mr.  Thompson's.  I  saw 
him  principally  about  the  St.  Lawrence  Hall. 
He  was  strutting  about  there,  dissipating, 
playing  billiards,  etc. 

Surratt  I  saw  in  Montreal  somewhere 
about  the  6th  or  7th  of  April  last,  on  several 
successive  days.  Surratt  is  a  man  of  about 
five  feet,  nine,  ten,  or  eleven  inches;  a  spare 
man,  light  complexioned,  and  light  hair.  I 
saw  him  in  Mr.  Thompson's  room;  and,  from 
the  conversation,  Surratt  had  just  brought  dis 
patches  from  Richmond  to  Mr.  Thompson, 
to  which  their  conversation  referred.  One 
dispatch  was  from  Mr.  Benjamin,  the  rebel 
Secretary  of  State,  and  there  was  also  a  letter, 
I  think  in  cipher,  from  Mr.  Davis.  I  had 
previously  had  some  conversation  with  Mr. 
Thompson  on  the  subject  of  the  plot  to  as 
sassinate  Mr.  Lincoln  and  his  Cabinet,  and  I 
had  been  invited  by  Mr.  Thompson  to  par 
ticipate  in  the  enterprise. 

On  the  occasion  when  Surratt  brought  the 
dispatches,  Thompson  laid  his  hand  on  them 
and  said,  "  This  makes  the  thing  all  right," 
referring  to  the  assent  of  the  rebel  authori 
ties.  Mr.  Lincoln,  Mr.  Johnson,  the  Score- 


TESTIMONY  OF  SANFORD  CONOVER. 


29 


tary  of  War,  the  Secretary  of  State,  Judge 
Chase,  and  General  Grant  were  to  be  victims 
of  this  plot. 

Mr.  Thompson  said,  on  one  of  these  oc 
casions,  that  it  would  leave  the  Government 
entirely  without  a  head.  That  there  was  no 
provision  in  the  Constitution  of  the  United 
States  by  which,  if  these  men  were  removed, 
they  could  elect  another  President.  Mr. 
Welles  (Secretary  of  the  Navy)  was  also 
named;  but  Mr. 'Thompson  said  it  was  not 
worth  while  to  kill  him. 

My  h'rst  interview  with  Mr.  Thompson 
was  at  his  room*  in  the  St.  Lawrence  Hall 
Hotel,  Montreal,  in  the  early  part  of  February 
last.  I  had  called  on  him  to  make  some 
inquiry  about  the  intended  raid  on  Ogdensburg, 
N.  Y.,  which  had  failed  because  the  United 
States  Government  had  received  intimation 
of  the  intentions  of  the  rebels,  and  were  pre 
pared  for  it.  Mr.  Thompson  said,  "We  will 
have  to  drop  it  for  a  time,  but  we  will  catch 
them  asleep  yet."  And  he  added,  "There  is 
a  better  opportunity,  a  better  chance  to  im 
mortalize  yourself  and  save  your  country." 
I  told  him  I  was  ready  to  do  any  thing  to 
save  the  country,  and  asked  what  was  to  be 
done.  He  said,  "Some  of  our  boys  are  go 
ing  to  play  a  grand  joke  on  Abe  and  Andy." 
This  led  to  explanations,  when  he  informed 
me  it  was  to  kill  them,  or  rather  "  to  remove 
them  from  office."  He  said  it  was  only  re 
moving  them  from  office;  that  the  killing  of 
a  tyrant  was  no  murder.  Thompson  had 
blank  commissions,  and  he  told  me  then, 
or  subsequently,  that  he  had  conferred  one 
on  Booth:  that  he  had  been  commissioned, 
and  that  everybody  that  engaged  in  the  enter 
prise  would  be  commissioned;  so  that,  if  it 
succeeded  or  failed,  if  they  escaped  to  Canada, 
they  could  not  be  successfully  claimed  under 
the  Extradition  Treaty. 

I  know,  of  my  own  personal  knowledge, 
that  the  commission  conferred  on  Bennett 
H.  Young,  the  St.  Albans'  raider,  was  a 
blank  commission,  filled  up  and  conferred  by 
Mr.  Clay.  The  name  attached  to  it,  when  it 
came  into  the  hands  of  these  men  from 
Richmond,  was  that  of  James  A.  Seddon, 
Secretary  of  War.  I  saw  this  commission, 
and  I  was  asked  by  Mr.  Thompson  as  to  the 
genuineness  of  Seddon's  signature,  having 
been  a  clerk  in  his  department.  I  testified 
before  Judge  Smith,  in  the  presence  of  Mr. 
Thompson,  Sanders,  Young,  and  Mr.  Abbot, 
the  counsel  in  the  case,  that  the  signature 
of  Seddon  was  genuine.  I  am  well  ac 
quainted  with  the  handwriting  of  James  A. 
Seddon,  and  know  that  the  blank  commis 
sion  was  in  his  handwriting. 

These  commissions  were  left  blank,  except 
the  signature  of  Seddon,  the  rebel  Secretary 
of  War;  the  names  were  filled  up  in  Canada. 
These  commissions  were  conferred  at  pleasure 
upon  those  who  engaged  in  any  enterprise 
and  it  was  understood  to  be  a  cover,  so  that 
in  case  they  were  detected  they  could  claim 


that  they  were  rebel  soldiers,  and  to  be  pro 
tected  and  treated  as  prisoners  of  war.  Booth, 
I  believe,  was  specially  commissioned  for  the 
assassination  project.  The  commission  of 
Bennett  H.  Young  was  of  this  sort,  and  was 
filled  up  and  conferred  by  Mr.  Clay. 

On  the  day  before,  or  the  very  day  of  the 
assassination,  I  had  a  conversation  with  Mr. 
Wm.  C.  Cleary,  at  the  St.  Lawrence  Hotel, 
in  Montreal.  We  were  speaking  of  the  re 
joicings  in  the  States  over  the  surrender  of 
Lee  and  the  capture  of  Richmond,  etc  ,  and 
Cleary  remarked  that  they  would  put  the 
laugh  on  the  other  side  of  their  mouth  in  a 
day  or  two.  The  conspiracy  was  talked  of 
at  that  time  about  as  commonly  as  one  would 
speak  of  the  weather. 

Before  this  I  had  a  conversation  with 
George  N.  Sanders,  who  asked  me  if  I  knew 
Booth  very  well.  He  expressed  some  appre 
hension  that  Booth  would  make  a  fizzle  of 
it;  that  he  was  dissipated  and  reckless,  and 
he  was  afraid  the  whole  thing  would  prove 
a  failure. 

While  in  Canada  I  was  a  correspondent 
of  tl^e  New  York  Tribune.  I  communicated 
to  the  New  York  Tribune  the  contemplated 
assassination  of  the  President  and  the  in 
tended  raid  on  Ogdensburg.  The  assassina 
tion  plot  they  declined  to  publish,  because 
they  had  been  accused  of  publishing  sensa 
tion  stories.  The  plot  of  the  assassination  I 
communicated  in  March  last,  and  also  in 
February,  I  think;  certainly  before  the  4th 
of  March. 

I  saw  John  H.  Surratt  in  Montreal,  about 
the  7th  to  the  9th  of  April,  within  four  or 
five  days  of  the  assassination  of  the  Presi 
dent.  From  the  whole  of  his  conversation  I 
inferred  that  he  was  to  take  his  part  in  the 
conspiracy  on  the  President  and  his  Cabinet, 
whatever  that  conspiracy  might  be.  I  do 
not  remember  that  I  heard  any  thing  said 
about  money  or  compensation,  but  it  was  al 
ways  well  understood  that  there  was  plenty 
of  money  where  there  was  any  thing  to  be 
done.  At  the  time  of  this  conversation  I 
understood  that  John  H.  Surratt  was  just 
from  Richmond. 

In  the  conversation  I  had  with  Mr. 
Thompson  in  February,  he  said  that  killing 
a  tyrant  in  such  a  case  was  no  murder.  He 
asked  me  if  I  had  ever  read  the  work  enti 
tled  "Killing,  no  Murder,"  a  letter  addressed 
by  Col.  Titus  to  Oliver  Cromwell.  Mr.  Ham- 
lin  was  also  to  have  been  included  had  the 
scheme  been  carried  out  before  the  4th  of 
March.  In  the  conversation  in  April,  Mr. 
Hamlin  was  omitted,  and  Vice-President 
Johnson  put  in  his  place. 

There  was  a  proposition  before  these  par 
ties  to  destroy  the  Croton  Dam,  by  which  the 
City  of  New  York  is  supplied  with  water.  It 
was  supposed  it  would  not  only  damage  the 
manufactories,  but  distress  the  people  gener 
ally  very  much.  Mr.  Thompson  remarked 
that  they  would  have  plenty  of  fires,  and 


30 


THE  CONSPIRACY    TRIAL. 


the  whole  city  would  soon  be  destroyed  by  a 
general  conflagration,  without  sending  any 
Kennedy  or  anybody  el.se  there;  and,  he 
added,  if  they  had  thought  of  this  scheme 
before,  they  might  have  saved  some  necks. 
That  was  said  a  few  weeks  ago,  when  Mr. 
Thompson,  Sanders,  Castleman,  Gen.  Carroll, 
and  myself  were  present. 

I  heard  a  great  deal  of  talk  about  the 
attempted  descent  upon  Chicago  last  year; 
that  they  had  some  eight  hundred  men  con 
cealed  there;  their  object,  as  stated  by 
Thompson  and  others,  was  the  release  of 
the  rebel  prisoners  at  Camp  Douglas. 

Cross-examined  by  MR.  DOSTER. 

I  do  not  think  I  ever  saw  either  of  the 
prisoners,  Atzerodt  or  Payne,  in  Canada. 

Cross-examined  by  Mr.  AIKEX. 

I  left  Richmond  to  go  North  in  December, 
1863.  I  afterward,  while  in  Washington, 
became  a  correspondent  of  the  New  York 
Tribune,  and  in  October  of  last  year  I  went 
to  Canada  in  that  capacity.  I  received  com 
pensation  for  my  services  as  correspondent  to 
the  Tribune,  but  have  never  received  any  pay 
from  the  Government,  nor  the  promise  of 
any,  nor  have  I  ever  received  any  pay  from 
the  Confederate  Government.  The  parties  in 
Canada  did  not  know  that  I  corresponded 
with  the  Tribune.  I  was  freely  admitted  to 
their  meetings  and  enjoyed  their  confidence. 

My  reason  for  communicating  the  intended 
assassination  to  the  Tribune,  and  not  directly 
to  the  Government,  was  that  I  supposed  that 
the  relations  between  the  editor  and  propri 
etor  of  the  Tribune  and  the  Government  were 
such,  that  they  would  lose  no  time  in  giving 
them  information  on  the  subject.  In  regard 
to  the  conspiracy,  as  well  as  to  some  other 
secrets  of  the  rebels  in  Canada,  I  requested 
Mr.  Gay  of  the  Tribune  to  give  information 
to  the  Government,  and  I  believe  he  has  for 
merly  done  so. 

I  met  John  II.  Surra tt  in  Mr.  Thompson's 
room,  and  once  in  Mr.  Sander's  room.  I 
spoke  to  Surratt,  asking  him  what  changes 
there  were  in  Richmond,  and  how  the  place 
looked.  While  in  Canada  I  went  by  the 
name  of  James  Watson  Wallace. 

1  heard  the  burning  of  the  City  of  New 
York  discussed  by  these  parties,  but  I  knew 
no  particulars  until  after  the  attempt  had 
been  made.  I  never  heard  the  name  of  Mary 
E.  Surratt  mentioned  in  any  one  of  these 
conferences. 

Cross-examined  by  MR.  Cox. 

In  February,  I  think  it  was,  I  heard  the 
project  of  capturing  the  President  and  carry 
ing  him  off  to  Richmond  talked  of.  When 
Mr.  Thompson  first  suggested  that  I  should 
participate  in  the  attempted  assassination,  I 
asked  if  it  would  meet  with  the  approbation 
of  the  Government  at  Richmond;  he  said  he 
thought  it  would,  but  he  would  know  in  a 


few  days.  That  was  early  in  February.  It 
was  in  April,  in  Surratt's  presence,  that  he 
referred  to  the  dispatches  that  had  been  re 
ceived  from  Richmond,  part  of  which  were 
in  cipher,  as  having  furnished  the  assent. 

Recalled  for  the  Prosecution. — May  22. 

The  Dr.  Blackburn  to  whom  I  referred  in 
my  previous  testimony,  is  the  same  that 
packed  a  number  of  trunks  with  infected 
clothing,  for  the  purpose  of  introducing  pes 
tilence  into  the  States.  I  have  seen  him 
associating  with  Jacob  Thompson,  George 
N.  Sanders,  his  son,  Lewis  Sanders,  Ex-Go v. 
Westcott  of  Florida,  Lewis  Castleman,  Wil 
liam  C.  Cleary,  Mr.  Porterfield,  Capt.  Magru- 
der,  and  a  number  of  rebels  of  less  note.  Dr. 
Blackburn  was  there  known  and  represented 
himself  as  an  agent  of  the  so-called  Confed 
erate  Government,  just  as  Jacob  Thompson 
was  an  agent.  In  June  last,  I  knew  of  Dr. 
Blackburn's  trying  to  employ  Mr.  John 
Cameron,  who  lived  in  Montreal,  to  accom 
pany  him  to  Bermuda,  for  the  purpose  of 
taking  charge  of  goods  infected  with  yellow 
fever  to  bring  to  the  cities  of  New  York, 
Philadelphia,  and,  I  understood,  Washington. 
Cameron  declined  to  go,  being  fearful  of 
taking  the  yellow  fever  and  dying  himself. 
Compensation  to  the  amount  of  several 
thousand  dollars,  he  told  me,  had  been  of 
fered  him,  which  I  understood  was  to  be 
paid  by  Dr.  Blackburn,  or  by  other  rebel 
agents.  Mr.  Jacob  Thompson,  I  understood, 
was  the  moneyed  agent;  the  others  drew  on 
him  for  what  money  they  required.  There 
were  other  parties  in  Montreal  that  Dr. 
Blackburn  employed,  or  endeavored  to  em 
ploy,  whom  I  knew  by  sight,  but  do  not  re 
member  their  names.  There  were  two  med 
ical  students.  I  heard  Blackburn  say  that 
he  went  from  Montreal  to  Bermuda,  or  some 
of  the  West  India  Islands,  about  a  year  ago 
last  June,  for  the  express  purpose  of  attend 
ing  cases  of  yellow  fever,  and  collecting  in 
fected  clothing,  and  forwarding  it  to  New 
York,  but  for  some  reason  the  scheme  failed. 
On  one  occasion,  I  remember,  Jacob  Thomp 
son,  Mr.  Cleary,  and,  I  think,  Lewis  Sanders, 
were  present  when  Dr.  Blackburn  spoke  of 
his  enterprise.  They  all  favored  it,  and  were 
all  very  much  interested  in  it. 

It  was  proposed  to  destroy  the  Croton  Dam 
at  New  York.  Dr.  Blackburn  proposed  to 
poison  the  reservoirs,  and  made  a  calcula 
tion  of  the  amount  of  poisonous  matter  it 
would  require  to  impregnate  the  water  so 
far  as  to  render  an  ordinary  draught  poison 
ous  and  deadly.  lie  had  taken  the  capacity 
of  the  reservoirs,  and  the  amount  of  water 
that  was  generally  kept  in  them.  Strychnine, 
arsenic,  prussic  acid,  and  a  number  of  others 
were  spoken  of  as  the  poisons  which  he  pro 
posed  to  use.  Blackburn  regarded  the 
scheme  as  feasible;  Mr.  Thompson,  how 
ever,  feared  it  would  be  impossible  to  collect 
so  large  a  quantity  of  poisonous  matter 


TESTIMONY   OF    SAXFORD    CONOVER. 


31 


without  exciting  suspicion,  and  leading  to  the 
detection  of  the  parties.  Whether  the  scheme 
has  been  entirely  abandoned  or  not,  I  do  not 
know;  but  so  far  as  the  blowing  up  of  the 
dam  is  concerned  it  has  not  been.  Jacob 
Thompson  fully  approbated  the  enterprise, 
and  discussed  it  freely,  together  with  Mr. 
Lewis  Sanders,  Mr.  Cleary,  and  Mr.  M.  A. 
Fallen  of  Mississippi,  who  had  been  a  sur 
geon  in  the  rebel  army.  The  matter  was 
discussed  in  June  last,  and  I  have  heard  it 
spoken  of  since.  When  Mr.  Thompson 
made  the  suggestion  that  the  collection  of  so 
large  an  amount  -of  poison  might  attract  at 
tention  to  the  operation,  Mr.  Fallen  and  others 
thought  it  could  be  managed  in  Europe. 
Fallen  is  a  physician. 

Among  others  that  I  knew  in  Toronto  was 
Dr.  Stuart  Robinson,  a  Doctor  of  Divinity, 
a  refugee  from  Kentucky,  where  he  had  been 
editor  of  a  journal,  called  the  True  Presby 
terian.  He  was  present  when  some  of  these 
schemes  were  being  discussed.  I  remember 
he  approved  of  the  poisoning  of  the  Croton 
water.  He  said  any  thing  under  heaven,  that 
could  be  done  would  be  justifiable  under 
the  circumstances.  He  is  regarded  as  one  of 
the  most  intense  of  all  the  traitors  who  have 
taken  refuge  in  Canada;  he  is,  I  believe, 
related  to  the  Breckinridges  of  Kentucky. 
Dr.  Robinson  appeared  to  be  on  intimate 
terms  with  Jacob  Thompson  and  Dr.  Black 
burn. 

I  saw  John  II.  Surratt  in  Canada  three  or 
four  days  after  the  assassination  of  the 
President.  I  saw  him  in  the  street  with  a 
Mr.  Forterfield.  I  learned  immediately  after 
that  Surratt  was  suspected ;  that  officers  were 
on  his  track;  and  that  he  had  decamped. 
Mr.  Forterfield  is  a  Southern  gentleman, 
now  a  British  subject,  having  been  made  so, 
I  believe,  by  a  special  act  of  the  Canadian 
Farliament.  He  has  been  for  some  time  a 
broker  or  banker  there.  He  is  the  agent 
who  took  charge  of  the  St.  Albans  plunder 
for  the  Ontario  bank,  when  prematurely 
given  up  by  Judge  Coursol.  Forterfield  is 
on  very  intimate  terms  with  Thompson  and 
Sanders. 

When  Mr.  Thompson  received  the  dis 
patches  from  Richmond  in  April  assenting 
to  the  assassination,  there  were  present  Mr. 
Surratt,  General  Carroll  of  Tennessee,  I  think 
Mr.  Castleman,  and  I  believe  there  were  one 
or  two  others  in  the  room,  sitting  farther 
back.  General  Carroll  participated  in  the 
conversation,  and  expressed  himself  as  more 
anxious  that  Mr.  Johnson  should  be  killed 
than  anybody  else.  He  said  that  if  the 
damned  prick-louse  were  not  killed  by  some 
body,  he  would  kill  him  himself.  Ilis  ex 
pression  was  a  word  of  contempt  for  a  tailor, 
BO  I  have  always  understood.  At  this  inter 
view  it  was  distinctly  said  that  the  enter 
prise  of  assassinating  the  President  was  fully 
confirmed  by  the  rebel  authorities  at  Rich 
mond. 


Booth,  whom  I  gaw  on  one  occasion  in 
conversation  with  Sanders  and  Thompson, 
went  by  the  nick-name  of  "  Pet"  I  so  heard 
him  called  by  Mr.  Thompson,  J  think;  by 
Cleary,  I  am  sure,  and  by  others. 

The  firing  of  New  York  City  was  recog 
nized  among  these  parties  as  having  been 
performed  by  the  authority  of  the  rebel  Gov 
ernment,  and  was  by  the  dirtction  of  Mr. 
Thompson.  I  so  learned  from  Mr.  Thomp 
son,  or  at  least  from  conversation  in  his  pres 
ence.  Thompson  said  Kennedy  deserved  to 
be  hanged,  and  he  was  devilish  glad  he  had 
been,  because  he  was  a  stupid  fellow,  and  a 
bungler,  and  had  managed  things  badly. 

I  have  always,  in  my  convictions  and  feel 
ings,  been  loyal  to  the  Government  of  the 
United  States,  and  escaped  from  the  rebel 
service  the  first  moment  I  had  opportunity. 
I  know,  of  my  own  personal  knowledge,  that 
Jefferson  Davis  was  the  head  of  the  so-called 
Confederate  States,  and  was  called  its  Presi 
dent,  and  acted  as  such,  controlling  its  armies 
and  civil  administration. 

Recalled  for  the  Prosecution. — June  27. 

[The  following  was  read  by  the  Judge  Advocate  from  a 
volume  published  in  Montreal,  by  John  Love]],  St.  Is'ich- 
olas  Street,  180.%  entitled  "The  St.  Albans  Raid;  or,  In 
vestigation  into  the  Charges  against  Lieutenant  Bennett 
II.  Young  and  Command  for  their  Acts  at  St.  Albans.  Vt., 
on  the  19th  of  October,  18(i4,"  at  page  212:  ] 

James  Watson  Wallace,  of  Virginia,  on  his 
oath,  saith  :  I  am  a  native  of  Virginia,  one  of 
the  Confederate  States.  I  resided  in  Jeffer 
son,  in  the  said  State.  I  left  that  State  in  Oc 
tober.  I  know  James  A.  Seddon  was  Secretary 
of  War  last  year.  Being  shown  and  having 
examined  the  papers  M,  N,  and  O,  I  say  that, 
from  my  knowledge  of  his  handwriting,  the 
signatures  to  said  papers  are  the  genuine 
signatures  of  the  said  James  A.  Seddon.  I 
have  seen  him  upon  several  occasions  write 
and  sign  his  name.  He  has  signed  docu 
ments,  and  afterward  handed  them  to  me,  in 
my  presence.  I  never  was  in  the  Confeder 
ate  army.  I  was  commissioned  as  Mojor  to 
raise  a  battalion.  I  have  seen  a  number  of 
the  commissions  issued  by  the  Confederate 
Government,  and  the  commission  of  Lieu 
tenant  Young,  marked  "M,"  is  in  the  usual 
form  of  all  commissions  issued  in  the  army, 
which  are  always  signed  by  the  Secretary  of 
War.  I  never  served;  I  was  incapacitated 
by  an  accident,  and  being  then  kidnapped  by 
the  Northerners. 

I  was  in  Richmond  in  September  last.  I 
then  visited  the  War  Department.  It  was 
then  notorious  that  the  war  was  to  be  carried 
into  New  England  in  the  same  way  that  the 
Northerners  had  done  in  Virginia.  When  I 
was  in  Virginia,  I  lived  in  my  own  houhe 
until  I  was  burned  out,  and  my  family  were 
turned  out  by  the  Northern  soldiers. 

The  counsel  for  the  L^nited  States  object 
to  the  whole  of  this  evidence  as  ilk-gal, 
irrelevant,  and  foreign  to  the  issue,  and  conse- 
quentlv  decline  to  cross-examine. 

[Signed]     J.  WATSON  WALLACE. 


32 


THE    CONSPIRACY   TRIAL. 


[  The  \vitnes8  proceeded :] 

That  contains  my  testimony  in  that  case, 
and  a  great  deal  more  that  1  did  not  give. 
It  is  compounded  of  the  testimony  of  myself 
and  of  a  James  Wallace,  who  also  was  ex 
amined  in  that  case.  There  was  also  a 
William  Pope  Wallace,  who  gave  testimony 
in  that  case,  and  I  do  not  know  but  a  fourth 
Wallace.  The  testimony  of  James  Wal 
lace  is  included  in  that  of  James  Watson 
Wallace,  the  name  under  which  I  was  there 
known.  The  testimony  I  gave  on  that  oc 
casion  was  correctly  reported  in  the  Witness; 
I  think  also  in  the  Montreal  Transcript.  In 
the  Gazette,  and  I  think  in  the  Telegraph, 
the  report  was  the  same  as  appears  in  that 
book,  which  was,  I  believe,  printed  from  type 
set  up  in  the  Telegraph  office. 

[  The  following,  cut  from  a  newspaper,  was  then  read  by 
the  Judge  Advocate,  and  afterward  offered  in  evidence :  ] 

James  Watson  Wallace,  sworn :  I  reside 
at  present  in  this  city;  have  been  here  since 
last  October;  formerly  resided  in  the  Con 
federate  States.  1  know  James  A.  Seddon  ; 
he  occupied  the  position  of  Secretary  of  War. 
I  should  say  the  signatures  to  the  papers  M, 
N,  0,  are  those  of  the  said  Seddon.  I  have  on 
several  occasions  seen  the  signature  of  James 
A.  Seddon,  and  have  seen  him  on  several 
occasions  sign  his  name;  he  has  signed  docu 
ments  in  my  presence,  and  handed  them  to 
me  after  signing.  I  never  belonged  to  the 
Confederate  army,  but  have  seen  many  com 
missions  issued  by  the  Confederate  Govern 
ment,  The  commission  of  Lieutenant  Young, 
marked  M,  is  in  the  usual  form.  The  army 
commissions  are  always  signed  by  the  Secre 
tary  of  War.  I  have  never  seen  a  commis 
sion  with  the  signature  of  the  President  or 
with  the  seal  of  the  Government,  The  Con 
federate  States,  at  the  time  I  left  the  country, 
had  no  seal;  one  had  been  devised,  but  had 
not  been  prepared. 

[  The  witness  continued :  ] 

That  paragraph  appeared  in  either  the 
Witness  or  the  Transcript,  from  one  of  which 
papers  it  is  cut,  and  was  published  immedi 
ately  after  the  trial,  and  correctly  reports 
the  testimony  I  gave  on  that  occasion. 

After  giving  my  testimony  here  on  the 
20th  and  22d  of  May,  I  left  this  city  and  re 
turned  to  Canada,  under  instructions  from 
Judge  Holt  to  procure  a  certified  copy  of  the 
evidence  before  the  Court  in  the  St.  Albans 
case.  I  met  Beverly  Tucker,  G.  N.  Sanders, 
his  son,  Lewis  Sanders,  General  Carroll  of 
Tennessee,  M.  A.  Pallen  of  Mississippi,  Ex- 
Governor  Westcott  of  Florida,  and  a  number 
of  others.  I  had  conversations  with  them, 
especially  with  Beverly  Tucker  and  G.  N. 
Sanders,  in  reference  to  events  here  in  Wash 
ington,  connected  with  the  assassination,  and 
the  trial  of  the  assassins.  At  that  time  they 
had  not  the  slightest  suspicion  that  I  had  been 
a  witness  before  this  Commission.  They  there 
fore  received  me  with  great  cordiality,  and  the 
subject  of  the  trial  was  very  freely  discussed. 


j  Beverly  Tucker  made  the  remark,  after  din 
ner — 1  dined  with  them — that  that  scoundrel 
jStanton,  and  that  blood-thirsty  villain  Holt, 
j  might  protect  themselves  as  long  as  they  re- 
!  maincd  in  office,  and  could  protect  themselves 
j  by  a  guard,  but  that  would  not  always  be  the 
i  case,  and,  by  the  Eternal,  he  had  a  large  ac- 
j  count  to  settle  with  them.  Sanders  never 
made  such  vehement  threats  as  I  have  heard 
Tucker  and  others  make.  Cleary  threatened 
the  officers  of  the  Government  for  the  execu 
tion  of  Beall.  He  said  that  Beall  would  have 
been  pardoned  if  it  had  not  been  for  Judge 
Holt;  but,  he  said,  "  blood  shall  follow  blood ; " 
and  added,  "We  have  not  done  with  them 
yet."  He  boasted  of  it,  and  reminded  me, 
just  after  the  killing  of  President  Lincoln, 
of  what  he  had  said  on  a  former  occasion; 
namely,  that  retributive  justice  would  come. 
He  considered  the  killing  of  the  President  as 
an  act  of  retributive  justice. 

1  had  been  in  Canada  at  my  last  visit  but 
a  short  time  when  the  parties  of  whom  I 
have  testified  knew  of  my  presence.  I  waa 
not  then  aware  that  my  testimony  had  been 
published,  or  I  should  not  have  gone  there. 
While  sitting  in  a  saloon,  one  of  the  Cana 
dian  rebels  came  in,  and,  discovering  my  pres 
ence,  immediately  reported  it  to  the  rest; 
then  there  came  in  more  than  a  dozen — San 
ders,  Tucker,  Carroll,  and  O'Donnel,  the 
man  who  boasted  of  setting  fire  to  houses 
in  New  York,  and  others.  They  at  once 
accused  me  of  betraying  their  secrets  in  be 
coming  a  witness  before  this  Commission. 
Not  knowing  at  the  time  that  my  testimony 
had  been  published,  I  denied  having  testi 
fied.  They  insisted  that  it  was  so,  and  that 
they  would  not  be  satisfied  unless  I  would 
give  them  a  letter  stating  that  I  had  not  tes 
tified.  I  knew  that  it  was  only  by  doing 
something  of  that  kind  that  I  could  get 
away  from  them.  It  was  then  arranged  that 
I  should  go  down  to  my  hotel,  and  it  was 
my  intention,  if  I  got  out  of  their  hands,  to 
leave  the  place  at  once.  When  we  got  op 
posite  the  St.  Lawrence  Hall  they  said,  ''We 
will  go  up  here."  O'Donnel  had  a  room  at 
the  St.  Lawrence  Hall.  Just  as  I  had  e"n- 
tered  his  room,  Beverly  Tucker  came  in  and 
aid  that  a  mere  letter  would  not  be  suffi 
cient;  that,  having  testified  before  the  Com 
mission  under  oath,  I  must  make  an  affida 
vit  under  oath,  to  make  my  denial  equally 
strong.  This,  at  first,  I  declined  to  do,  when 
a  dozen  of  them  assailed  me  in  the  most  furi 
ous  manner,  and  O'Donnel,  drawing  from  his 
pocket  a  pistol,  said  if  I  would  not  consent. 
I  could  not  leave  that  room  alive.  I  still  de 
clined  for  a  time,  when  Sanders  said  to  me, 
'Wallace,  you  see  what  kind  of  hands  you 
are  in  ;  I  hope  you  will  not  be  foolish  enough 
to  refuse."  It  was  under  these  circumstances 
that  I  consented. 

Mr.  Kerr,  who  defended  the  St.  Albans  raid 
ers,  was  sent  for  to  prepare  the  statement,  when 
we  adjourned  to  the  room  of  Ex-Governor 


THE  SUPPRESSED  TESTIMONY. 


33 


Westcott.  I  then  again  declined  giving  my 
oath  to  any  statement,  and  again  pistols 
were  held  to  my  head  by  one  of  Morgan's 
guerrillas.  I  do  not  know  his  name,  but  I 
know  him  well  as  a  rebel  soldier.  O'Don- 
nel  also  presented  his  pistol  at  me,  and  as-* 
sured  me  I  must  take  the  consequences  if  I 
would  not  do  as  they  desired  me.  The  affi 
davit  was  read  to  me  in  Westcott's  room ;  I, 
however,  paid  little  or  no  attention  to  it,  and 
I  there  signed  it,  and  went  through  the  cere 
mony  of  taking  an  oath.  They  also  brought 
some  other  man  in,  accompanying  Mr.  Kerr. 
Kerr  had  no  knowledge  of  the  menaces 
under  which  I  signed  the  paper.  Beverly 
Tucker  said,  before  Kerr  came,  that  in  order 
to  make  my  deposition  of  any  value,  it  must 
seem  that  I  did  it  willingly,  and  that  I 
must  not  manifest  any  unwillingness  to  sign 
it  before  Kerr;  if  I  did,  they  said  they  would 
follow  me  to  hell. 

When  Kerr  brought  the  paper  for  me  to 
sign,  I  did  so  without  any  remark;  although 
the  statements  in  the  body  of  the  paper  are 
absolutely  false.  The  following,  which  ap 
peared  in  the  Montreal  Telegraph,  and  after 
ward  in  the  New  York  World,  is  a  copy  of 
the  paper  I  signed. 

[  The  paper  was  put  in  evidence.  ] 

THE    SUPPRESSED    TESTIMONY. 

Sanford  Conover  v.  James  W.  Wallace — Affi 
davits  of  the  real  Wallace — Five  Hundred 
Dollars  Reward  offered  for  the  Arrest  of 
Conover — What  Thompson  said  about  a 
Proposition  to  Destroy  Waterworks  in  North 
ern  Cities — Interesting  Depositions. 

[  From  the  Montreal  Evening  Telegraph,  June  10.  ] 
^o  the  Editor  of  the  Evening  Telegraph: 

SIR:  Please  publish  my  affidavit  now 
handed  you,  and  the  advertisement  subjoined. 
I  will  obtain  and  furnish  others  for  publica 
tion  hereafter.  I  will  add  that  if  President 
Johnson  will  send  me  a  safe  conduct  to  go 
to  Washington  and  return  here,  I  will  pro 
ceed  thither  and  go  before  the  Military  Court 
and  make  profert  of  myself,  in  order  that  they 
may  see  whether  or  not  I  am  the  San  ford 
Conover  who  swore  as  stated. 

JAMES  W.  WALLACE. 

MONTREAL,  June  8,  1865. 

PBOVINCE  or  CANADA,  DISTRICT  OF  MONTREAL. 
James  Watson  Wallace,  of  the  city  and 
district  of  Montreal,  counselor  at  law,  being 
duly  sworn  upon  the  Holy  Evangelists,  doth 
depose  and  say :  I  am  the  same  James  Wat 
son  Wallace  who  gave  evidence  on  the  sub 
ject  of  the  St.  Albans  raid,  which  evidence 
appears  on  page  212  of  the  printed  report  of 
the  said  case.  I  am  a  native  of  the  county 
of  London,  in  the  Commonwealth  of  Vir 
ginia.  I  arrived  in  Montreal  in  the  month 
of  October  last  past.  I  resided  during  a  por 
tion  of  last  winter  and  spring  in  houses  in 
Craig  Street  and  Monique  Street,  in  the  city 

3 


of  Montreal.  I  have  seen  and  examined  the 
report  of  what  is  called  the  suppressed  evi 
dence  before  the  Court-martial  now  being 
holden  at  Washington  City  on  Mistress  Sur- 
ratt,  Payne,  and  others;  and  I  have  looked 
carefully  through  the  report  of  the  evidence 
in  the  New  York  papers  of  a  person  calling 
himself  Sanford  Conover,  who  deposed  to 
the  facts  that  while  in  Montreal  he  went  by 
the  name  of  James  Watson  Wallace,  and 
gave  evidence  in  the  St.  Albans  raid  investi 
gation ;  that  the  said  Sanford  Conover  evi 
dently  personated  me  before  the  said  Court- 
martial;  that  I  never  gave  any  testimony 
whatsoever  before  the  said  Court-martial  at 
Washington  City;  that  I  never  had  knowl 
edge  of  John  Wilkes  Booth,  except  seeing 
him  upon  the  stage,  and  did  not  know  he 
was  in  Montreal  until  I  saw  it  published, 
after  the  murder  of  President  Lincoln  ;  that  I 
never  was  a  correspondent  of  the  New  York 
Tribune ;  that  I  never  went  under  the  name 
of  Sanford  Conover;  that  I  never  had  any 
confidential  communication  with  George  N. 
Sanders,  Beverly  Tucker,  Hon.  Jacob  Thomp 
son,  General  Carroll  of  Tennessee,  Dr.  M. 
A.  Pallen,  or  any  of  the  others  therein  men 
tioned;  that  my  acquaintance  with  every 
one  of  these  gentleman  was  slight;  and,  in 
fine,  I  have  no  hesitation  in  stating  that  the 
evidence  of  the  said  Sanford  Conover  person 
ating  me  is  false,  untrue,  and  unfounded  in 
fact,  and  is  from  beginning  to  end  a  tissue 
of  falsehoods. 

I  have  made  this  deposition  voluntarily 
and  in  justice  to  my  own  character  and  name. 

[Signed]         J.  WATSON  WALLACE. 

Sworn  to  before  me,  at  Montreal,  this 
eighth  day  of  June,  1865. 

G.  SMITH,  J.  P. 

I,  Alfred  Perry,  of  Montreal,  do  hereby 
certify  that  I  was  present  when  the  said 
James  Watson  Wallace  gave  the  above  dep 
osition,  and  that  he  gave  it  of  his  own  free 
will;  and  I  further  declare  he  is  the  same 
individual  who  gave  evidence  before  the 
Honorable  Justice  Smith  in  the  case  of  the 
St.  Albans  raiders.  ALFRED  PERRY 

MONTREAL,  June  9. 

Extract  from  suppressed  testimony  given 
at  Washington  before  the  Military  Commis 
sion  by  Sanford  Conover,  alias  J.  Watson 
Wallace,  on  the  first  two  daya  of  the  pro 
ceedings,  as  published  in  the  New  York  pa 
pers: 

Q.  State  whether  you  did  testify  on  the 
question  of  the  genuineness  of  that  signature 
of  Seddon  ? 

A.  I  did. 

Q.  In  what  court? 

A.  I  testified  before  Judge that  the 

signature  was  genuine. 

Q.  State  to  the  Court  whether  you  are  ac 
quainted  and  familiar  with  the  handwriting 


34 


THE    CONSPIRACY   TRIAL. 


of  James  A.  Seddon,  the  rebel  Secretary  ol 
War? 

A.  Yes,  sir. 

Q.  State  to  the  Court,  upon  your  oatl 
here,  whether  the  signature  to  the  blank 
commission  you  saw  was  his  genuine  signa 
ture  or  not? 

A.  It  was  his  genuine  signature. 

Q.  Did  you  go  to  Canada  by  the  name  of 
Samuel  Conover? 

A.  No,  sir. 

Q.  What  name  did  you  go  there  by? 

A.  James  Watson  Wallace. 

[The  witness  continued:] 

Of  Alfred  Perry,  the  person  named  in  the 
paper,  I  know  nothing.  I  never  heard  of 
euch  a  person. 

[The  Judge  Advocate  here  read  tho  following,  which 
was  put  in  evidence:] 

PROVINCE  OF  CANADA,  DISTRICT  OF  MONTREAL. 
William  Plastings  Kerr,  of  the  city  and 
district  of  Montreal,  esquire,  advocate,  being 
duly  sworn,  doth  depose  and  swear  that  he 
knows  James  Watson  Wallace,  late  of  Vir 
ginia,  but  now  and  for  the  last  seven  months 
resident  in  the  city  of  Montreal,  counselor 
at  law;  that  he,  this  deponent,  was  one  of 
the  counsel  engaged  for  the  defense  in  the 
affair  of  the  investigation  before  the  Hon. 
Judge  Smith  into  the  St.  Albans  raid;  that 
he  was  present  in  Court,  and  examined  the 
said  James  Watson  Wallace  while  the  said 
investigation  was  going  on,  a  report  of  whose 
testimony  appears  at  page  12  of  the  printed 
case,  published  by  John  Lovell,  of  the  said 
city  of  Montreal;  that  this  deponent  has  fre 
quently  seen  the  said  James  Watson  Wal 
lace  on  private  business,  and  has  acted  as  the 
said  James  Watson  Wallace's  professional 
adviser  in  Montreal;  that  this  deponent  yes 
terday  saw  the  said  James  Watson  Wallace 
in  the  said  city  of  Montreal ;  that  he  was 
present  while  the  said  James  Watson  Wal 
lace  denied  that  he,  the  said  James  Watson 
Wallace,  was  the  person  who,  under  the  name 
of  Sanford  Conover,  gave,  before  the  Military 
Commission  or  Court-martial*  now  and  for 
some  time  past  assembled  in  Washington, 
evidence  which  has  since  been  published  as 
the  suppressed  evidence  in  the  New  York 
papers — he,  the  said  James  Watson  Wal 
lace,  then  and  there  declaring  that  some  per 
son  had  personated  him,  the  same  James 
Watson  Wallace,  and  had  given  testimony 
which,  from  beginning  to  end,  was  a  tissue 
of  falsehoods;  that  this  deponent  was  present 
while  the  statements  and  denials  of  the  said 
James  Watson  Wallace  were  reduced  to  writ 
ing  in  his  presence,  and  signed  by  the  said 
James  Watson  Wallace,  and  sworn  to  by  him 
before  G.  Smith,  Esq.,  one  of  her  Majesty's 
justices  of  the  peace;  that  the  said  James 
Watson  Wallace  then  and  there  declared 
that  he  made  the  said  affidavit  voluntarily, 
and  in  order  to  clear  himself  from  any 
ouspicion  of  being  the  Sanford  Conover  in 


question.  And  this  deponent  saith  that  no 
force  or  violence  was  used  toward  the  said 
James  Watson  Wallace,  nor  were  any  men 
aces  or  threats  made  use  of  toward  him  by 
any  one,  but  he  seemed  to  be  anxious  to 
make  the  said  affidavit,  and  to  use  all  meana 
in  his  power  to  discover  the  person  who  had 
so  personated  him,  the  said  James  Watson 
Wallace,  before  the  Military  Commission ; 
and  further  this  deponent  saith  not,  and  hath 
signed.  WILLIAM  H.  KERK. 

Sworn  before  me  at  Montreal,  this   ninth 
day  of  June,  eighteen  hundred  and  sixty-five 
JAS.  SMITH,  J.  S."  C. 

Five  hundred  dollars  reward  will  be 
given  for  the  arrest,  so  that  I  can  bring  to 
punishment,  in  Canada,  the  infamous  and 
perjured  scoundrel  who  recently  personated 
me  under  the  name  of  Sanford  Conover,  and 
deposed  to  a  tissue  of  falsehoods  before  the 
Military  Commission  at  Washington. 

JAMES  W.  WALLACE. 

[The  witness  continued :] 

That  paper  and  its  preparation  is  part  of 
the  action  referred  to,  and  was  prepared 
inder  the  threat  to  which  I  have  testified. 
[  can  not  say  positively  that  those  parties 
attempted  to  detain  me  in  Canada;  I  only 
enow  that  I  was  rescued  by  the  United  States 
jovernment,  through  the  interposition  of 
Major-General  Dix. 

NATHAN"  AUSER. 
For  the  Prosecution. — June  27. 

I  reside  in  New  York,  and  am  acquainted 
vith  Sanford  Conover,  who  has  just  testified; 

have  known   him   eight  or  ten  years;  his 

character  for  integrity  and  usefulness  is  good, 

as  far  as  I  know.     I    recently  accompanied 

lim  to  Montreal,  in  Canada,  and  was  present 

it  an  interview  which  he  had  with  Beverly 

Tucker,  George  N.  Sanders,  and  that  clique 

f  rebel   conspirators.      After  we  went  into 

D'Donnel's  room,  at  Montreal,  Mr.  Cameron 

»ave  each  of  us  a  paper  containing  the  cvi- 

lence  Mr.  Conover  gave  here  in  Washington 

Before   the  Commission,  when  he  denied  it. 

?hey  told  him  he  must  sign  a  written  paper 

o  that  effect,  and  if  he  did  not,  he  would  not 

eave  the  room  alive.     O'Donnel  said  that  he 

ould  shoot  him   like  a  dog  if  he  did  not. 

Vtr.  Conover  was  first  going  to  his  hotel  to 

vrite  the  paper;  at  first  they  agreed  to  tbi*, 

>ut  when  they  got  as  far  as  St.    Lawrence 

lall,  they  made  up  their  minds  they  would 

ot  let  him  do  this  himself,  and  when  they 

went  up  stairs,  at  the  St  Lawrence  Hall,  they 

would  not  allow  me  to  go  up.     There  were, 

think,  twelve  or  fifteen  of  the  conspira- 
ors  together;  among  them,  Sanders,  Tucker, 
)'Donnel,  Gen.  Carroll,  Fallen,  and  Cameron, 
'hey  all  accompanied  him  for  the  purpose 
f  preventing  his  escape,  and  obliging  him  to 
,o  what  they  required. 


TESTIMONY    OF   JAMES    B.   MERRITT. 


35 


JAMES  B.  MERRITT. 
For  the  Prosecution. — May  13. 

I  was  born  in  Canada,  while  my  parents 
were  on  a  visit  there  from  their  home,  Oneida 
county,  New  York.  I  am  a  physician,  and 
have  resided  for  about  a  year  in  Canada; 
part  of  the  time  at  Windsor,  and  part  at 
North  Dumfries,  Waterloo  county. 

In  October  or  November  last,  I  met  at 
Toronto,  George  Young,  formerly  of  Mor 
gan's  command ;  a  man  named  Ford,  also 
from  Kentucky;  and  another  named  Graves, 
from  Louisville.  Young  asked  me  if  I  had 
seen  Colonel  Steele  before  leaving  Windsor. 
Steele  was  a  rebel,  and  I  understood  had 
been  in  the  rebel  service.  He  asked  me  if 
Colonel  Steele  had  said  any  thing  to  me  in  re 
lation  to  the  Presidential  election.  I  told  him 
he  had  not ;  he  then  said,  "  We  have  some 
thing  on  the  tapis  of  much  more  importance 
than  any  raids  we  have  made  or  can  make." 
He  said  it  was  determined  that  Old  Abe 
should  never  be  inaugurated;  that,  I  believe, 
was  his  expression.  They  had  plenty  of 
friends  in  Washington,  he  said ;  and,  speak 
ing  of  Mr.  Lincoln,  he  called  him  a  "damned 
old  tyrant."  I  was  afterward  introduced  to 
George  N.  Sanders  by  Colonel  Steele.  I  asked 
Steele  what  was  going  to  be  done,  or  how  he 
liked  the  prospects  of  the  Presidential  elec 
tion,  and  he  replied,  "The  damned  old  tyrant 
never  will  serve  another  term  if  he  is  elected." 
Mr.  Sanders  then  said  he  (Lincoln)  "would 
keep  himself  mighty  close,  if  he  did  serve  an 
other  term." 

About  the  middle  of  February,  a  meeting  of 
rebels  was  held  in  Montreal,  to  which  I  was  in 
vited  by  Captain  Scott.  I  should  think  there 
were  ten  or  fifteen  persons  present;  among 
them  were  Sanders,  Colonel  Steele,  Captain 
Scott,  George  Young,  Byron  Hill.  Caldwell, 
Ford,  Kirk,  Benedict,  and  myself.  At  that 
meeting  a  letter  was  read  by  Sanders,  which 
he  said  he  had  received  from  "the  Presi 
dent  of  our  Confederacy,"  meaning  Jefferson 
Davis,  the  substance  of  which  was  that  if  the 
people  in  Canada  and  the  Southerners  in  the 
States  were  willing  to  submit  to  be  governed 
by  such  a  tyrant  as  Lincoln,  he  did  not  wish 
to  recognize  them  as  friends  or  associates; 
and  he  expressed  his  approbation  of  what 
ever  measures  they  might  take  to  accomplish 
this  object.  The  letter  was  read  openly  in 
the  meeting  by  Sanders,  after  which  it  was 
handed  to  those  present,  and  read  by  them, 
one  after  another.  Colonel  Steele,  Young, 
and  Hill,  and  I  think  Captain  Scott,  read  it. 
I  did  not  hear  any  objection  raised. 

At  that  meeting  Sanders  named  a  number 
of  persons  who  were  ready  and  willing,  as 
he  said,  to  engage  in  the  undertaking  to  re 
move  the  President,  Vice-President,  the  Cab 
inet,  and  some  of  the  leading  Generals ;  and 
that  there  was  any  amount  of  money  to  ac 
complish  the  purpose,  meaning  the  assas 
sination.  Booth's  name  was  mentioned,  as 


I  also  were  the  names  of  George  Harper, 
Charles  Caldwell,  one  Randall,  and  Harri 
son,  by  which  name  Surratt  was  known,  and 
whom  I  saw  in  Toronto.  Another  person,  I 
think,  spoken  of  by  Sanders,  was  one  they 
called  "  Plug  Tobacco,"  or  Port  Tobacco. 
I  think  I  saw  the  prisoner,  D.  E.  Herold,  in 
Canada.  Sanders  said  that  Booth  was  heart 
and  soul  in  this  project  of  assassination,  and 
felt  as  much  as  any  person  could  feel,  for 
the  reason  that  he  was  a  cousin  to  Beall 
that  was  hung  in  New  York.  He  said  that 
if  they  could  dispose  of  Mr.  Lincoln,  it  would 
be  an  easy  matter  to  dispose  of  Mr.  John 
son ;  he  was  such  a  drunken  sot,  it  would 
be  an  easy  matter  to  dispose  of  him  in  some 
of  his  drunken  revelries.  When  Sanders 
read  the  letter,  he  also  spoke  of  Mr.  Seward. 
I  inferred  that  it  was  partially  the  language 
of  the  letter.  It  was,  I  think,  that  if  the 
President,  Vice-President,  and  Cabinet,  or 
Mr.  Seward  could  be  disposed  of,  it  would 
be  satisfying  the  people  of  the  North ;  that 
they  (tlie  Southerners)  had  friends  in  the 
North,  and  that  peace  could  be  obtained  on 
better  terms  than  could  be  otherwise  ob 
tained;  that  they  (the  rebels)  had  endeavored 
to  bring  about  the  war  between  the  United 
States  and  England,  and  that  Mr.  Seward, 
through  his  energy  and  sagacity,  had 
thwarted  all  their  efforts.  This  was  sug 
gested  as  one  of  the  reasons  for  removing 
him. 

On  the  evening  of  Wednesday,  the  5th  of 
April  last,  I  was  in  Toronto,  and  when  on 
my  way  to  the  theater,  I  met  Harper  and 
Ford.  They  asked  me  to  go  with  them  and 
spend  the  evening;  I  declined,  as  I  was  going 
to  the  theater.  The  next  morning  I  was 
around  by  the  Queen's  Hotel,  where  I  saw 
Harper,  Caldwell,  Randall,  Charles  Holt, 
and  a  man  called  "Texas."  Harper  said 
they  were  going  to  the  States,  and  were 
going  to  kick  up  the  damnedest  row  that  had 
ever  been  heard  of.  An  hour  or  two  after 
ward  I  met  Harper,  and  he  said  if  I  did 
not  hear  of  the  death  of  Old  Abe,  and  of  the 
Vice-President,  and  of  General  Dix,  in  less 
than  ten  days,  1  might  put  him  down  as  a 
damned  fool".  This  was  the  6th  of  April. 

Booth,  I  think,  was  mentioned  as  being  in 
Washington.  They  said  they  had  plenty  of 
friends  in  Washington,  and  that  there  were 
some  fifteen  or  twenty  going  there.  On  Sat 
urday,  the  8th  of  April,  I  was  at  Gait,  five 
miles  from  which  place  Harper's  mother 
lives,  and  I  ascertained  there  that  Harper 
and  'Caldwell  had  stopped  there  and  had 
started  for  the  States. 

When  I  found  that  they  had  left  for 
Washington,  probably  for  the  purpose  of 
assassinating  the  President,  I  went  to  Squire 
Davidson,  a  justice  of  the  peace,  to  give  in 
formation  and  have  them  stopped.  He  said 
that  the  thing  was  too  ridiculously  or  su 
premely  absurd  to  take  any  notice  of;  it 
would  only  appear  foolish  to  give  such  inform- 


36 


THE    CONSPIRACY    TRIAL. 


ation  and  cause  arrests  to  be  made  on  such 
grounds;  it  was  so  inconsistent  that  no  person 
would  believe  it,  and  he  declined  to  issue  any 
process. 

I  was  in  Gait  again  on  Friday  after  the 
assassination,  and  I  found  from  Mr.  Ford 
that  Harper  had  been  home  on  the  day  be 
fore,  and  had  started  to  go  back  to  the  States 
again. 

"Some  time  last  fall,  one  Colonel  Ashly,  a 
rebel  sympathizer,  and  a  broker  at  Windsor, 
handed  me  a  letter  which  he  had  received 
from  Jacob  Thompson,  asking  him  for  funds 
to  enable  rebels  to  pay  their  expenses  in  going 
to  the  States  to  make  raids,  as  I  understood; 
and,  referring  to  the  letter,  he  asked  me  to 
contribute. 

In  February  last  I  had  a  conversation  with 
Mr.  Clement  C.  Clay  in  Toronto.  I  spoke  to 
him  about  the  letter  from  Mr.  Jefferson  Davis 
that  Sanders  had  exhibited  in  Montreal;  he 
seemed  to  understand  the  nature  and  charac 
ter  of  the  letter  perfectly.  I  asked  him  what 
he  thought  about  it.  He  said  he  thought  the 
end  would  justify  the  means;  that  was  his 
expression. 

Surratt  was  once  pointed  out  to  me,  in  Feb 
ruary,  in  Toronto;  he  was  pointed  out  to  me 
by  Scott,  I  think,  while  he  and  Ford  and 
myself  were  standing  on  the  sidewalk. 

I  saw  Booth  in  Canada  two  or  three  times; 
I  sat  at  the  table  with  him  once  at  the  St. 
Lawrence;  Sanders,  Scott,  and  Steele  were  at 
the  same  table.  Sanders  conversed  with 
Booth,  and  we  all  drank  wine  at  Mr.  Sanders's 
expense.  I  have  seen  Booth  a  good  many 
times  on  the  stage,  and  know  him  very  well 
by  sight. 

[The  witness,  being  here  shown  a  photograph,  identified 
it  as  that  of  J.  Wilkes  Booth.  ] 

I  received  a  letter  from  General  James  B. 
Fry,  the  Provost  Marshal  General,  stating 
that  he  had  received  a  letter  written  by  Squire 
Davidson,  giving  information  of  my  visit  to 
him  for  the  purpose  of  having  Harper  and 
Caldwell  arrested. 

[The  following  letter  was  then  read,  and  put  In  evi 
dence  :  ] 

WAR  DEPARTMENT,  ) 

PKOVOST  MARSHAL  GENERAL'S  BUREAU,  >• 

Washington,  D.  C.,  April  20,  1865.     J 

Dr.  J.  B.  Merritt,  Ayr,  Canada  West : 

SIR:  I  have  been  informed  that  you  pos 
sess  information  connected  with  a  plot  to 
assassinate  the  President  of  the  United  States 
and  other  prominent  men  of  this  Government. 
The  bearer  has  been  sent  to  present  this  let 
ter  to  you,  and  to  accompany  you  to  this 
city,  if  you  will  come.  The  Secretary  of  War 
authorizes  me  to  pledge  you  protection  and 
security,  and  to  pay  all  expenses  connected 
with  your  journey  both  ways,  and  in  addition 
to  promise  a  suitable  reward  if  reliable  and 
useful  information  is  furnished.  Independent 
of  these  considerations,  it  is  hoped  that  the 
cause  of  humanity  and  justice  will  induce 
you  to  act  promptly  in  divulging  any  thing 
you  may  know  connected  with  the  recent 


tragedy  in  this  city,  or  with  any  other  plots 
yet  in  preparation.     The  bearer  is  directed  to 
pay  all  expenses  connected  with  your  trip. 
I  am,  very  respectfully, 

Your  obedient  servant, 

JAMES  B.  FRY, 
Provost  Marshal  General 

Cross-examined  by  MR.  STONE. 

The  man  called  Harrison  I  saw  in  Canada 
two  or  three  times;  I  saw  him  once  in  a  sa 
loon,  about  the  15th  or  20th  of  February  ;  he 
was  pointed  out  to  me  by  Mr.  Brown,  I  think, 
and  I  noticed  him  more  particularly  on  ac 
count  of  his  name  having  been  mentioned,  in 
connection  with  others,  at  the  meeting  in 
Montreal. 

Cross-examined  by  MR.  AIKEN. 

I  was  on  confidential  terms  with  the  rebels 
in  Canada  because  I  represented  myself  as 
a  good  Southerner.  The  letter  from  Jeffer 
son  Davis,  which  was  read  by  Mr.  Sanders, 
was  read  to  the  meeting  some  time  in  Feb 
ruary,  and  on  the  10th  of  April  I  went  to 
see  the  justice  of  the  peace;  he  refused  to 
accede  to  my  request.  I  then  called  upon  the 
Judge  of  the  Court  of  Assizes ;  made  my 
statement  to  him,  and  he  said  I  should  have 
to  go  to  the  grand  jury.  I  first  communi 
cated  this  information  to  the  Government,  I 
think,  two  weeks  ago  to-day,  since  the  as 
sassination  of  the  President,  though  I  under 
stood  the  Government  was  in  possession  of 
the  information  before  I  communicated  it 
direct. 

I  saw  Surratt  in  Toronto  about  the  20th 
of  last  February;  he  was  pointed  out  to  me 
on  the  street,  and  passed  down  by  me.  Ford, 
who  was  with  me,  and  who  was  present  at 
the  meeting  held  in  Montreal,  said,  "Doctor, 
that  is  Surratt."  He  is  a  man  five  feet,  six, 
seven,  or  eight  inches,  slim,  and  wore  a  dark 
moustache,  and  was  dressed  in  ordinary 
clothes,  like  any  gentleman  would  be,  I  think 
of  a  dark  color.  I  am  not  positive  that  it 
was  Surratt,  because  I  do  not  know  the  man. 

I  knew  of  the  project  to  burn  the  City  of 
New  York.  I  heard  it  talked  of  in  Windsor, 
and  communicated  the  information  to  Colonel 
Hill,  of  Detroit,  before  the  attempt  was  made. 
It  was  communicated  to  me  by  Robert  Drake, 
and  a  man  named  Smith,  both  formerly  of 
Morgan's  command.  They  both  had  been 
to  Chicago  to  attend  the  Presidential  Conven 
tion  there.  They  told  me,  after  their  return, 
that  they  went  there  for  the  purpose  of  re 
leasing  the  rebel  prisoners  at  Camp  Douglas. 

I  continued  my  intimacy  with  these  rebel 
sympathizers  for  the  purpose  of  giving  inform 
ation,  when  I  should  find  it  of  importance. 
Nine-tenths  of  the  people  in  Canada  are  rank 
rebel  sympathizers,  and  my  practice  was 
mostly  among  Southerners.  I  have  never  re 
ceived  a  dollar  from  the  Government  for  fur 
nishing  any  information  from  Canada,  nor 
have  1  ever  received  any  thing  from  the  rebels 


TESTIMONY    OF    LIEUTENANT-GENERAL    GRANT. 


37 


for  services  rendered  them.  I  have  proof  in 
my  pocket  from  the  Provost  Marshal  at  De 
troit,  that  I  furnished  valuable  information 
without  any  remuneration. 

Recalled  for  the  Prosecution. — June  27. 

On  Friday,  the  2d  of  June,  I  was  in  Mon 
treal.  At  the  St.  Lawrence  Hall  I  saw 
General  Carroll.  I  introduced  myself  to 
him  as  Dr.  Merrill  of  Memphis.  There  was 
a  large  family  of  Merrills  residing  there,  who 
were  physicians.  Pie  expressed  considerable 
gratification  at  seeing  me,  and  he  introduced 
me  to  Governor  Westcott,  and  we  conversed 
in  reference  to  this  trial.  These  men  were 
not  aware  that  I  had  testified  before  this 
Commission.  My  testimony  was  not  pub 
lished  there  until  Tuesday,  the  6th  of  June. 
Mr.  Beverly  Tucker  said,  in  that  conversation, 
that  they  had  friends  in  Court,  and  were  per 
fectly  posted  as  to  every  thing  that  was  going 
on  at  this  trial.  Tucker  said  they  had  burned 
all  the  papers  they  had  received  from  Rich 
mond,  for  fear  some  Yankee  would  break  into 
their  room  and  steal  them,  and  use  them 
against  them  in  this  trial.  In  that  interview, 
I  should  state  that  Governor  Westcott  ex 
pressed  no  disloyal  sentiments,  and  took  no 
part  in  the  conversation. 

GEORGE  B.  HCTCHINSON. 
For  the  Prosecution. — June  23. 

I  am  a  native  of  England,  and  was  an  en 
listed  man  in  the  service  of  the  United  States, 
from  the  12th  of  June,  1861,  to  the  12th  of 
November,  1862.  I  have  resided  in  Canada 
for  the  last  seven  months.  I  have  seen  Clem 
ent  C.  Clay,  Beverly  Tucker,  George  N.  San 
ders,  and  others  of  that  class  several  times. 
[  last  saw  Clement  C.  Clay  at  the  Queen's 
Hotel,  Toronto,  about  the  12th  or  13th  of 
February. 

On  the  2d  of  June,  and  on  the  morning  of 
the  3d,  I  saw  Dr.  Merritt  in  conversation  with 
Beverly  Tucker,  at  the  St.  Lawrence  Hall  in 
Montreal.  I  heard  Beverly  Tucker  say,  in 
reply  to  a  remark  of  Dr.  Merritt,  that  he  had 
burned  all  the  letters,  for  fear  some  Yankee 
Bon  of  a  bitch  might  steal  them  out  of  his 
room,  and  use  them  in  testimony  against 
him.  They  were  at  the  time  speaking  about 
this  trial,  "and  the  charges  against  them. 
They  were  talking  to  Dr.  Merritt  as  to  one  to 
whom  they  gave  iheir  confidence. 

LIEUTENANT-GENERAL  U.  S.  GRANT. 
For  the  Prosecution. — May  12. 

Since  the  4th  of  March,  1864,  I  have  been 
in  the  command  of  the  armies  of  the  United 
States.  I  met  Jacob  Thompson,  formerly 
Secretary  of  the  Interior  under  President 
Buchanan's  administration,  when  the  army 
was  lying  opposite  Vicksburg,  at  what  is 
called  Milliken's  Bend  and  Young's  Point. 
A  little  boat  was  discovered  coming  up  near 


the  opposite  shore,  apparently  surreptitiously, 
and  trying  to  avoid  detection.  A  little  tug 
was  sent  out  from  the  navy  to  pick  it  up. 
When  they  got  to  it,  they  found  a  little  white 
flag  sticking  out  of  the  stern  of  the  row-boat, 
and  Jacob  Thompson  in  it.  They  brought 
him  to  Admiral  Porter's  flag-ship,  and  I  was 
sent  for  to  meet  him.  I  do  not  recollect  the 
ostensible  business  he  had.  There  seemed 
to  be  nothing  at  all  important  in  the  visit, 
but  he  pretended  to  be  under  a  flag  of  truce, 
and  he  had  therefore  to  be  allowed  logo  back 
again.  That  was  in  January  or  February 
of  '63;  and  it  was  the  first  flag  of  truce  we 
had  through.  He  professed  to  be  in  the 
military  service  of  the  rebels,  and  said  that 
he  had  been  offered  a  commission — any  thing 
that  he  wanted;  but,  knowing  that  he  was 
not  a  military  man,  he  preferred  having  some 
thing  more  like  a  civil  appointment,  and  he 
had  therefore  taken  the  place  of  Inspector- 
General,  with  the  rank  of  Lieutenant-Colonel, 
in  the  rebel  service. 

The  military  department  of  Washington 
embraces  all  the  defenses  of  the  city  on  both 
sides  of  the  river. 

[The  commission  of  Lieutenant-General  Grant,  dated 
March  4, 1804,  accompanied  by  General  Orders  No.  98,  was 
here  offered  in  evidence.] 

Cross-examination  by  Mr.   AIKEN. 

All  the  civil  courts  of  the  city  are  in  op 
eration.  I  am  not  prepared  to  say  exactly 
to  what  point  the  Department  of  Washing 
ton  extends;  any  troops  that  belong  to  the 
comma'iJ  of  Major  General  Augur,  who  com 
mands  the  Department  of  Washington,  sent 
out  to  any  point,  would  necessarily  remain  un 
der  his  command.  Martial  law,  I  believe,  ex 
tends  to  all  the  territory  south  of  the  railroad 
that  runs  across  from  Annapolis,  running 
south  to  the  Potomac  and  Chesapeake. 

I  understand  that  martial  law  extends 
south  of  Annapolis,  although  I  have  never 
seen  the  order. 

SAMUEL  P.  JONES. 
For  the  Prosecution. — May  12. 

I  resided  in  Richmond  during  a  part  of 
the  war.  I  have  often  heard  the  officers  and 
men  of  the  Confederate  army  conversing  re 
specting  the  assassination  of  President  Lin 
coln.  I  have  heard  it  discussed  by  rebel  offi 
cers  as  they  were  sitting  around  their  tents. 
They  said  they  would  like  to  see  him 
brought  there  ,dead  or  alive,  and  they  thought 
it  could  be  done.  I  heard  a  citizen  make  the 
remark  that  he  would  give  from  his  private 
purse  ten  thousand  dollars,  in  addition  to  the 
Confederate  amount  offered,  to  have  the  Presi 
dent  of  the  United  States  assassinated,  and 
brought  to  Richmond,  dead  or  alive, 
have,  besides  that,  heard  sums  offered  to  be 
paid,  with  the  Confederate  sum,  for  any  per 
son  or  persons  to  go  north  and  assassinate 
the  President.  I  judge,  from  what  I  heard, 


38 


THE  CONSPIRACY   TRIAL. 


that  there  was  an  amount  offered  by  the 
Government  in  their  trashy  paper,  to  assas 
sinate  any  officials  of  the  United  States 
Government  that  were  hindering  their  cause. 

HENRY  VON  STEINACKER. 
For  the  Prosecution. — May  12. 

I  was  in  the  Confederate  service  as  an  en 
gineer  officer  in  the  Topographical  Depart 
ment,  with  the  pay  of  an  engineer,  and  was 
on  the  staff  of  General  Edward  Johnson.  Al 
together  1  was  in  the  service  nearly  three 
years.  In  the  summer  of  '63,  being  at  Swift 
Run  Gap,  near  Harrison  burg,  I  was  over 
taken  by  three  citizens,  and  rode  with  them 
some  eighteen  or  twenty  hours.  The  name 
of  one  was  Booth  and  another  Shepherd. 

•  A  photograph  of  John  Wilkos  Booth  being:  shown  to 
the  witness,  he  identified  a  resemblance  between  it  and 
the  person  referred  to.  The  photograph  was  ottered  in 
evidence.] 

I  was  asked  by  Booth,  and  also  by  the 
others,  what  I  thought  of  the  probable  suc 
cess  of  the  Confederacy.  I  told  them,  after 
such  a  chase  as  we  had  just  had  from  Get 
tysburg,  1  thought  it  looked  very  gloomy. 
Booth  replied,  "That  is  nonsense.  If  we 
only  act  our  part,  the  Confederacy  will  gain 
itS'independence.  Old  Abe  Lincoln  must  go 
up  the  spout  and  the  Confederacy  will  gain 
its  independence  any  how."  By  this  expres 
sion  I  understood  he  meant  the  President 
must  be  killed.  He  said  that  as  soon  as  the 
Confederacy  was  nearly  giving  out,  or  as  soon 
as  they  were  nearly  whipped,  that  this  would 
be  their  final  resource  to  gain  their  inde 
pendence.  The  other  two  engaged  in  the 
conversation,  and  assented  to  Booth's  senti 
ments. 

They  being  splendidly  mounted,  and  my 
horse  being  nearly  broken  down,  they  left 
me  the  next  day.  Three  or  four  days  after 
ward,  when  I  came  to  the  camp  of  the  Second 
Virginia  Regiment,  I  found  there  three  citi 
zens,  and  was  formally  introduced  by  Cap 
tain  Randolph  to  Booth  and  Stevens.  That 
evening  there  was  a  secret  meeting  of  the 
officers,  and  the  three  citizens  were  also  pres 
ent.  I  was  afterward  informed  of  the  pur 
pose  of  the  meeting  by  Lieutenant  Cockrell 
of  the  Second  Virginia  Regiment,  who  was 
present.  It  was  to  send  certain  officers  on 
''detached  service"  to  Canada  and  the  "bord 
ers  "  to  release  rebel  prisoners,  to  lay  Northern 
cities  in  ashes,  and  finally  to  get  possession 
of  the  members  of  the  Cabinet  and  kill  the 
President.  This  "detached  service"  was  a 
nickname  in  the  Confederate  army  for  this 
sort  of  warfare.  I  have  heard  these  things 
spoken  of,  perhaps,  a  thousand  times  before 
I  was  informed  it  was  the  purpose  discussed 
at  this  meeting,  but  I  always  considered  it 
common  braggadocio.  I  have  freely  heard  it 
spoken  of  in  tLe  streets  of  Richmond  among 
those  connected  with  the  rebel  Government, 
Cockrell  belonged,  I  believe,  to  the  Second 
Virginia  Regiment,  and  to  the  same  com 


pany  to  which  Captain  Beall  belonged,  who 
was  executed  at  Governor's  Island.  Cockrell 
told  me  that  Beall  was  on  "  detached  serv 
ice,  "  and  that  we  would  hear  of  him. 

I  have  heard  mention  made  of  the  exist 
ence  of  secret  orders  for  certain  purposes  to 
assist  the  Confederacy.  One  1  frequently 
heard  of  was  culled  a  Golden  Circle,  and 
several  times  I  heard  the  name  of  the  "Sons 
of  Liberty." 

[No  cross-examination.] 

HOSEA  B.  CARTER. 
For  the  Prosecution. — May  29. 

I  reside  in  New  Hampshire.  I  was  at  the 
St.  Lawrence  Hall,  Montreal,  Canada,  from 
the  9th  or  JOth  of  September  till  the  1st  of 
February  last.  I  met  George  N.  Sanders, 
Clement' C.  Clay,  Beverly  Tucker,  Dr.  Black 
burn,  Dr.  Pnllen,  J.  Wilkea  Booth,  General 
Carroll  from  Memphis,  an  old  gentleman  from 
Florida  that  wore  a  cue — I  think  his  name  was 
Westcott — a  Dr.  Wood,  a  gentleman  named 
Clark,  and  many  others  whose  names  I  do 
not  now  recollect.  1  do  not  remember  that  1 
saw  Jacob  Thompson  there.  I  saw  him  at 
Niagara  Falls  on  the  17th  of  June.  Some 
twenty  or  thirty  Southerners  boarded  at  the 
St.  Lawrence  Hall,  and  usually  associated 
together,  and  very  little  with  other  people 
who  came  there,  either  English  or  American. 

I  frequently  observed  George  N.  Sanders 
in  intimate  association  with  Booth,  and  others 
of  that  class,  in  Montreal.  1  used  to  see  a 
man  named  Payne  nearly  every  morning.  1 
think  they  called  him  John.  He  was  one  of 
the  Payne  brothers,  two  of  whom  were  arrested 
for  the  St.  Albans  raid  ;  but  Lewis  Payne,  the 
accused,  I  do  not  think  I  have  seen  before. 

Dr.  Blackburn  came  to  the  St.  Lawrence 
Hall  when  the  Donegana  Hotel  closed,  which 
was  about  the  20th  of  October  last.  He 
seemed  to  associate  on  terms  of  intimacy 
with  all  those  I  have  named,  but  Booth. 
Whether  he  came  there  before  Booth  I  can 
not  say.  Blackburn  was  one  of  that  clique  of 
men  who  were  known  there  as  Confederates. 

Cross-examined  by  MR.  DOSTER. 

I  heard  that  the  Paynes  to  whom  I  have 
referred  originally  came  from  Kentucky,  and 
that  they  had  been  in  the  counterfeiting  busi 
ness.  I  think  I  have  seen  Cleary  in  Canada 
in  company  with  John  Payne.  I  have  seen 
them  in  company  with  Sanders  and  Tucker 
and  Blackburn  every  day. 

JOHN  DEVENY. 
For  the  Prosecution. — May  12. 

I  have  resided  in  Washington,  off  and  on,  for 
a  year  or  two.  I  was  formerly  a  Lieutenant 
in  company  "  E,"  Fourth  Maryland  Regi 
ment.  I  was  before  that  employed  in  Adams's 
Express  company.  In  July  of  1863,  I  was 
in  Montreal,  and  left  there  the  3d  or  4th  of 


TESTIMONY   OF   MRS.    MAKY   HUDSPETH. 


39 


States  I!1 


February  of  this  year.  I  was  well  acquainted 
with  John  Wilkes  Booth.  The  first  time  I 
saw  him  in  Canada  he  was  standing  in  the 
St.  Lawrence  Hotel,  Montreal,  talking  with 
George  N.  Sanders.  I  believe  that  was  in  the 
month  of  October.  They  were  talking  con 
fidentially,  and  drinking  together.  I  saw  them 
go  into  i)o\vley's  and  have  a  drink  together. 
I  also  saw  in  Canada,  at  the  same  time,  Jacob 
Thompson  of  Mississippi,  who  was  Secretary 
of  the  Interior  under  the  administration  of 
President  Buchanan.  I  also  saw  Mr.  Clement 
C.  Clay  of  Alabama,  formerly  United 
Senator,  Mr.  Beverly  Tucker,  and  several 
others  who  were  pointed  out  to  me;  but  I 
was  not  personally  acquainted  with  those 
gentlemen.  I  spoke  to  Booth,  and  asked  him 
if  he  was  going  to  play  there,  knowing  that 
he  was  an  actor.  He  said  he  was  not.  I  then 
eaid,  "  What  are  you  going  to  do?"  He  said, 
"  I  just  came  here  on  a  pleasure  trip."  The 
other  Southerners,  whose  names  I  have  men 
tioned,  I  have  seen  talking  with  Sanders,  but 
I  can  not  say  positively  that  I  saw  them  talk 
ing  with  Booth. 

The  next  time  I  saw  Booth  was  on  the 
steps  of  the  Kirk  wood  House,  in  this  city,  on 
the  night  of  the  14th  of  April,  between  5  arid 
6  o'clock.  He  was  going  into  the  hotel  as  I 
was  standing  talking  to  a  young  man  named 
Callan.  As  Booth  passed  into  the  hotel,  he 
turned  round  and  spoke  to  me,  and  I  asked 
him  when  he  carne  from  Canada.  He  said 
he  had  been  back  here  for  some  time,  and  was 
going  to  stay  here  for  some  time,  and  would 
see  me  again.  I  asked,  "  Are  you  going  to 
play  here  again?"  He  replied,  u  No,  I  am 
not  going  to  play  again  ;  I  am  in  the  oil  busi 
ness."  I  laughed  at  his  reply,  it  being  a 
common  joke  to  talk  about  the  oil  business. 
A  few  minutes  afterward  I  saw  him  come 
down  the  street  on  horseback,  riding  a  bay 
horse.  I  noticed  particularly  what  kind  of 
a  looking  rig  he  had  on  the  horse,  though  I 
know  not  what  made  me  do  it.  The  next  I 
saw  of  him  was  when  he  jumped  out  of  the 
box  of  the  theater,  and  fell  on  one  hand  and 
one  knee,  when  I  recognized  him.  He  fell 
with  his  face  toward  the  audience.  I  said, 
"  He  is  John  Wilkes  Booth,  and  he  has  shot 
the  President."  I  made  that  remark  right 
there.  That  is  the  last  I  ever  saw  of  him, 
when  he  was  running  across  the  stage.  I 
heard  the  words  " Sic  semper  tyrannus"  shouted 
in  the  President's  box  before  I  saw  the  man. 
He  had  a  knife  in  his  hand  as  he  went  across 
the  stage.  If  he  made  any  remark  as  he 
went  across  the  stage  I  did  not  notice  it.  The 
excitement  was  very  great  at  the  time. 

WILLIAM  E.  W HEELER. 
For  the  Prosecution. — May  12. 

I  reside  in  Chickopee,  Massachusetts.  I 
was  at  Montreal,  Canada,  in  October  or  No 
vember  last,  when  I  saw  John  Wilkes  Booth, 
who  \A  as  standing  in  front  of  the  St.  Lawrence 


Hall,  Montreal.  I  spoke  to  Mr.  Booth,  and 
asked  him  if  he  was  going  to  open  the  the 
ater  there.  He  said  he  was  not.  He  left  me, 
and  entered  into  conversation  with  a  person 
who  was  pointed  out  to  me  as  George  N. 
Sanders. 

[No  cross-examination.] 

HENRY  FINEGAS. 
For  the  Prosecution. — May  26. 

I  reside  in  Boston,  Mass.,  and  have  been 
in  the  United  States  service  since  the  rebel 
lion  as  a  commissioned  officer.  In  the 
month  of  February  last  I  was  in  Montreal, 
Canada,  and  remained  there  eleven  days. 
While  there  I  knew  well,  by  sight,  George 
N.  Sanders,  William  C.  Cleary,  and  other 
men  of  that  circle,  but  did  not  make  their 
acquaintance  personally.  On  one  occasion 
I  heard  a  conversation  between  George  N. 
Sanders  and  Wm.  C.  Cleary;  it  took  place 
at  the  St.  Lawrence  Hall  on  the  14th  or  15th 
of  February.  I  was  sitting  in  a  chair,  and 
Sanders  and  Cleary  walked  in  from  the  door; 
they  stopped  about  ten  feet  from  me,  and  I 
heard  Cleary  say,  "I  suppose  they  are  get 
ting  ready  for  the  inauguration  of  Lincoln 
next  month."  Sanders  said,  "Yes;  if  the  boya 
only  have  luck,  Lincoln  won't  trouble  them 
much  longer."  Cleary  asked,  "Is  every 
thing  well  ?"  Sanders  replied,  "  O,  yes;  Booth 
is  bossing  the  job." 

Cross-examined  by  MR.  AIKEN. 

The  conversation  took  place  about  5 
o'clock  in  the  evening.  Sanders  and  Cleary 
were  standing  close  together,  conversing  in 
rather  a  low  tone  of  voice,  I  thought.  I  never 
was  introduced  to  Sanders  or  Cleary.  but  have 
been  introduced  to  men  who  claimed  to  be 
escaped  prisoners  from  camps  in  the  North. 
I  knew  Sanders  and  Cleary  by  sight  well;  I 
saw  them  testify  in  court  in  the  St.  Albann 
raid  case.  Cleary  is  a  middle-sized  man, 
sandy  complexion,  sandy  hair;  carries  his 
neck  a  little  on  one  side,  and  has  reddish 
whiskers.  Sanders  is  a  short-sized,  low,  thick 
set  man,  with  grayish  curly  hair,  a  grayish 
moustache,  and  very  burly  form. 

I  left  Montreal  on  the  17th  of  February. 
I  first  communicated  this  information  to  the 
Government  a  few  days  ago,  but  spoke  of  it 
to  two  or  three  parties  some  time  ago.  I  did 
not  consider  it  of  any  importance  at  the 
time,  but  looked  upon  it  as  a  piece  of  brag 
gadocio. 

MRS.  MARY  HUDSPETH. 
For  the  Prosecution. — May  12. 

In  November  last,  after  the  Presidential 
election,  and  on  the  day  General  Butler  left 
New  York,  as  I  was  riding  on  the  Third 
Avenue  cars,  in  New  York  City,  I  overheard 
the  conversation  of  two  men.  They  were 
talking  most  earnestly.  One  of  them  said  he 
would  leave  for  Washington  the  day  after  to- 


40 


THE    CONSPIRACY    TRIAL. 


morrow.  The  other  was  going  to  Newburg, 
or  Newbern,  that  night.  One  of  the  two  was 
a  young  man  with  false  whiskers.  This  I 
observed  when  a  jolt  of  the  car  pushed  his 
hat  forward  and  at  the  same  time  pushed 
his  whiskers,  by  which  I  observed  that  the 
front  face  was  darker  than  it  was  under  the 
whiskers.  Judging  by  his  conversation,  lie 
was  a  young  man  of  education.  The  other, 
whose  name  was  Johnson,  was  not.  I  no 
ticed  that  the  hand  of  the  younger  man  was 
very  beautiful,  and  showed  that  he  had  led 
a  life  of  ease,  not  of  labor.  They  exchanged 
letters  while  in  the  car.  When  the  one  who 
had  the  false  whiskers  put  back  the  letters 
in  his  pocket,  I  saw  a  pistol  in  his  belt.  I 
overheard  the  younger  say  that  he  would 
leave  for  Washington  the  day  after  to-mor 
row  ;  the  other  was  very  angry  because  it 
had  not  fallen  on  him  to  go  to  Washington. 
Both  left  the  cars  before  I  did.  After 
they  had  left,  my  daughter,  who  was  with 
me,  picked  up  a  letter  which  was  lying  on 
the  floor  of  the  car,  immediately  under  where 
they  sat.  and  gave  it  to  me;  and  I,  thinking 
it  was  mine,  as  I  had  letters  of  my  own  to 
post  at  the  Nassau  Street  Post-office,  took  it 
without  noticing  that  it  was  not  one  of  my 
own.  When  I  got  to  the  broker's,  where  I 
was  going  with  some  gold,  I  noticed  an  en 
velope  with  two  letters  in  it. 

[Exhibiting  an  envelope  with  two  letters.] 

These  are  the  letters,  and  both  were  con 
tained  in  one  envelope.  After  I  examined 
the  letters  and  found  their  character,  I  took 
them  first  to  General  Scott,  who  asked  me  to 
read  them  to  him.  He  said  he  thought  they 
were  of  great  importance,  and  asked  me  to 
take  them  to  General  Dix.  1  did  so. 

[The  following  letters  were  then  read  to  the  Commis 
sion,  and  offered  in  evidence:] 

DEAR  Louis:  The  time  has  at  last  come 
that  we  have  all  so  wished  for,  and  upon  you 
every  thing  depends.  As  it  was  decided  be 
fore  you  left,  we  were  to  cast  lots.  Accord 
ingly  we  did  so,  and  you  are  to  be  the  Char 
lotte  Corday  of  the  nineteenth  century. 
When  you  remember  the  fearful,  solemn  vow 
that  was  taken  by  us,  you  will  feel  there  is 
no  drawback — Abe  must  die,  and  now.  You 
can  choose  your  weapons.  The  cup,  the 
knife,  the  bullet.  The  cup  failed  us  once,  and 
might  again.  Johnson,  who  will  give  this, 
has  been  like  an  enraged  demon  since  the 
meeting,  because  it  has  not  fallen  upon  him 
to  rid  the  world  of  the  monster.  He  says 
the  blood  of  his  gray-haired  father  and  his 
noble  brother  call  upon  him  for  revenge,  and 
revenge  he  will  have;  if  he  can  not  wreak  it 
upon  the  fountain-head,  he  will  upon  some 
of  the  blood-thirsty  Generals.  Butler  would 
suit  him.  As  our  plans  were  all  concocted 
and  well  arranged,  we  separated,  and  as  I  am 
writing — on  my  way  to  Detroit — I  will  only 
say  that  all  rests  upon  you.  You  know 
where  to  find  your  friends.  Your  disguises 
are  so  perfect  and  complete,  that  without  one 


i  knew  your  face,  no  police  telegraphic  dispatch, 
would  catch  you.  The  English  gentleman, 
Har court,  must  not  act  hastily.  Remember 
he  has  ten  days.  Strike  ior  your  home, 
strike  for  your  country;  bide  your  time,  but 
strike  sure.  Get  introduced,  congratulate 
him,  listen  to  his  stories — not  many  more 
will  the  brute  tell  to  earthly  friends.  Do 
any  thing  but  fail,  and  meet  us  at  the  ap 
pointed  place  within  the  fortnight.  Inclose 
this  note,  together  with  one  of  poor  Leenea. 
1  will  give  the  reason  for  this  when  we  meet. 
Return  by  Johnson.  I  wish  1  could  go  to 
you,  but  duty  calls  me  to  the  West;  you  will 
probably  hear  from  me  in  Washington.  San 
ders  is  doing  us  no  good  in  Canada. 
Believe  me,  your  brother  in  love, 

CHARLES  SELBY. 

ST.  Louis,  October  21,  186-L 

DEAREST  HUSBAND:  Why  do  you  not  come 
home?  You  left  me  for  ten  days  only,  and 
you  now  have  been  from  home  more  than 
two  weeks.  In  that  long  time,  only  sent 
me  one  short  note — a  few  cold  words — and 
a  check  for  money,  which  I  did  not  require. 
What  has  come  over  you?  Have  you 'for 
gotten  your  wife  and  child?  Baby  calls  for 
papa  until  my  heart  aches.  We  are  so  lonely 
without  you.  I  have  written  to  you  again 
and  again,  and,  as  a  last  resource,  yesterday 
wrote  to  Charlie,  begging  him  to  see  you  and 
tell  you  to  come  home.  I  am  so  ill,  not  able 
to  leave  my  room  ;  if  I  was,  I  would  go  to 
you  wherever  you  were,  if  in  this  world. 
Mamma  says  I  must  not  write  any  more,  as 
I  am  too  weak.  Louis,  darling,  do  not  stay 
away  any  longer  from  your  heart-broken  wife. 

LEENEA. 

HON.  CHARLES  A.  DANA. 
for  the   Prosecution. — June  9. 

The  letters  found  and  testified  to  by  Mrs. 
Hudspeth,  came  to  me  by  mail  at  the  War 
Department,  inclosed  in  one  from  General  Dix. 
The  letter  from  General  Dix  bears  date  No 
vember  17th,  and  I  received  it,  1  suppose,  the 
next  day.  On  receiving  the  letters  I  took  them 
to  the  President,  Mr.  Lincoln,  who  looked  at 
them,  but  I  do  not  think  he  made  any  spe 
cial  remark;  he  seemed  to  attach  very  little 
importance  to  them.  Two  or  three  days 
after  the  assassination  of  the  President,  I  was 
sent  by  the  Secretary  of  War  to  find  them. 
I  went  over  to  the  White  House  and  searched 
in  the  President's  private  desk,  where  1  found 
them.  I  kept  them  for  some  time,  and  after 
ward  delivered  them  to  Judge  Bingham. 
The  President  received  a  great  many  com 
munications  of  a  similar  nature,  but  he 
seems  to  have  attached  more  importance  to 
these  than  any  others,  because  I  found  them 
among  his  papers  in  an  envelope  marked,  in 
his  own  handwriting,  "Assassination."  The 
two  letters  just  put  in  evidence,  are  those 
that  were  inclosed  in  the  letter  from  General 
Dix;  and  the  letter  from  General  Dix  is  in 


IDENTIFICATION    OP    KEY  TO    SECRET  CIPHER. 


41 


his  own    handwriting,  with  which    I  am    fa 
miliar. 

[The  following  letter  from  General  Dix  was  then  read 
and  put  in  evidence:] 

HEAD-QUARTERS,  DEPARTMENT  OF  THE  EAST,  \ 
New  York  City,  17th  November,  1S(>4.     J 

C.  A.  DANA,  ESQ.— My  Dear  Sir:  The  in 
closed  was  picked  up  in  a  Third  Avenue 
railroad  car.  I  should  have  thought  the 
whole  thing  got  up  for  the  Sunday  Mercury, 
but  for  the  genuine  letter  from  St.  Louis 
in  a  female  hand.  The  Charles  Selby  is 
obviously  a  manufacture.  The  party  who 
dropped  the  letter  was  heard  to  say  he 
would  start  for  Washington  Friday  night. 
He  is  of  medium  size;  has  black  hair  and 
whiskers,  but  the  latter  are  believed  to  be 
a  disguise.  lie  had  disappeared  before  the 
letter  was  picked  up  and  examined. 

Yours  truly,  JOHN  A.  DIX. 

Cross-examined  by  MR.  AIKEN. 

The  authorities  of  the  War  Department 
are  in  the  habit  of  receiving  a  great  many 
foolish  letters  from  anonymous  correspond 
ents  and  others;  some  of  a  threatening  char 
acter,  and  others  making  extraordinary  prop 
ositions. 

.MAJOR  T.  T.  ECKERT. 
For  the  Prosecution. — June  13. 

An  order  was  sent  forward  to  General  But 
ler  at  New  York  for  his  troops  to  leave  on 
the  llth  of  November.  General  Butler  made 
application  for  leave  to  remain  until  the  next 
Monday;  the  Secretary  of  War  replied  to  the 
application,  "You  have  permission  to  remain 
until  Monday,  the  14th  of  November." 


IDENTIFICATION  OF  KEY  TO  SECRET 
CIPHER. 

LIEUTENANT  WILLIAM  H.  TERRY. 

For  the  Prosecution. — May  18. 

I  am  attached  to  the  Provost  Marshal's 
Office  in  this  city.  On  the  night  of  the  as 
sassination,  Mr1  Eaton  placed  in  my  hands 
certain  papers  which  he  had  taken  from  the 
trunk  of  J.  Wilkes  Booth,  at  the  National 
Hotel. 

TA  paper  containing  a  secret  cipher  was  handed  to  the 
witness.] 

This  is  one  of  the  papers  I  received  from 
Mr.  Eaton  ;  it  was  in  that  envelope,  on  which 
Colonel  Taylor  marked  the  word  ''Important,'" 
and  signed  his  initials  to  it. 

WILLIAM  EATON. 

For  the  Prosecution. — May  18. 

On  the  night  of  the  14th  of  April,  after  the 
assassination,  I  went,  under  authority  of  the 
War  Department,  to  the  National  Hotel,  to 
take  charge  of  Booth's  trunk  and  its  con 


tents.  I  took  all  the  papers  to  the  Provost 
Marshal's  Office,  and  placed  them  in  the  hands 
of  Lieutenant  Terry. 

COLONEL  JOSEPH  H.  TAYLOR. 

For  the  Prosecution. — May  19. 

I  am  on  duty  at  the  Head-Quarters  of 
the  Department  of  Washington. 

[A  paper  containing  a  secret  cipher  was  handed  to  the 
witness.] 

I  received  this  paper,  on  the  night  of  the 
14th  of  April  last,  from  Lieutenant  Terry, 
an  officer  on  duty  in  the  Provost  Marshal's 
Office,  who  had  been  sent  by  me  to  examine 
Booth's  trunk,  where  it  was  found  among 
Booth's  papers. 

HON.  C.  A.  DANA. 
For  the  Prosecution. — May  20. 

I  am  Assistant  Secretary  of  War.  1  was 
in  Richmond,  Va.,  on  Wednesday,  the  5th 
of  April — Richmond  being  evacuated  on  the 
3d.  On  the  6th  of  April  I  went  into  the 
office  of  Mr.  Benjamin,  the  rebel  Secretary 
of  State.  On  the  shelf,  among  Mr.  Benja 
min's  books  and  other  things,  I  found  this 
secret  cipher  key. 

[The  secret  cipher  key  is  a  model  consisting  of  a  cylin 
der  six  inches  in  length,  and  two  and  one-half  in  diam 
eter,  fixed  in  a  frame,  the  cylinder  having  the  printed  key 
pasted  over  it.  By  shifting  the  pointers  fixed  over  the 
cylinder  on  the  upper  portion  of  the  frame,  according  to  a 
certain  arrangement  previously  agreed  upon,  the  cipher 
letter  or  dispatch  can  readily  be  deciphered.  Tho  model 
was  put  in  evidence.] 

I  saw  it  was  a  key  to  the  official  rebel 
cipher,  and  as  we  had  a  good  many  of  them 
to  decipher  at  different  times  at  the  War  De 
partment,  it  seemed  to  me  of  interest,  and  I 
therefore  brought  it  away.  Mr.  Benjamin's 
offices  consist  of  a  series  of  rooms  in  suc 
cession.  His  own  office  was  the  inmost  of 
all ;  the  next  room,  where  his  library  was,  and 
which  seemed  to  have  been  occupied  by  his 
most  confidential  clerk  or  assistant,  was  the 
one  in  which  I  found  several  interesting  docu 
ments,  and  this  cipher  model  among  them. 
I  sent  it  to  Major  Eckert  at  the  War  Depart 
ment,  who  has  charge  of  the  ciphers  there. 

MAJOR  T.  T.  ECKERT. 

For  the  Prosecution. — May  20. 

[A  secret  cipher,  found  among  the  effects  of  J.  "\Vilke* 
Booth,  already  in  evidence,  was  here  handed  to  the  wit 
ness;  also  the  secret  cipher  model  just  testified  to.] 

I  have  examined  the  secret  cipher  found  in 
Booth's  trunk,  and  the  other  cipher  just  testi 
fied  to  by  the  Assistant  Secretary  of  War,  and 
find  they  are  the  same. 

Cipher  dispatches  from  the  rebel  authori 
ties  have  from  time  to  time  fallen  into  my 
hands,  and  as  1  am  somewhat  familiar  with 
them,  they  have  been  referred  to  me  for  ex 
amination.  Some  of  the  dispatches  referred 
to  me  were  worked  on  the  same  plan. 

[Thfi  witness  here  produced  cipher  dispatches  bearing 
date  October  13th  and  1'Jtu.] 


42 


THE    CONSPIRACY  TRIAL. 


These  dispatches  which  I  hold  in  my  hand 
are  copies  and  translations  of  certain  cipher 
dispatches  which  came  from  Canada;  they 
passed  through  the  War  Department  in  this 
city,  where  copies  were  taken  of  them,  and 
the  originals  forwarded  to  Kichmond.  These 
dispatches  are  written  in  the  cipher  to  which 
this  model  and  the  paper  found  in  Booth's 
trunk  furnish  the  key. 

[The  dispatches  were  then  read  as  follows,  and  put  in 

evidence:] 

OCTOBER  13,  1864. 

We  again  urge  the  immense  necessity  of 
our  gaining  immediate  advantages.  Strain 
every  nerve  for  victory.  We  now  look  upon 
the  re-election  of  Lincoln  in  November  as 
almost  certain,  and  we  need  to  whip  his 
hirelings  to  prevent  it.  Besides,  with  Lin 
coln  re-elected  and  his  armies  victorious,  we 
need  not  hope  even  for  recognition,  much  less 
the  help  mentioned  in  our  last.  Holcombe 
will  explain  this.  Those  figures  of  the 
Yankee  armies  are  correct  to  a  unit.  Our 
friend  shall  be  immediately  set  to  work  as  you 
direct. 

OCTOBEU  19, 1864. 

Your  letter  of  the  13th  instant  is  at  hand. 
There  is  yet  time  enough  to  colonize  many 
voters  before  November.  A  blow  will  shortly 
be  stricken  here.  It  is  not  quite  time.  Gen 
eral  Longstreet  is  to  attack  Sheridan  without 
delay,  and  then  move  North,  as  far  as  practi 
cable,  toward  unprotected  points. 

This  will  be  made  instead  of  movement 
before  mentioned. 

He  will  endeavor  to  assist  the  Republicans 
in  collecting  their  ballots.  Be  watchful,  and 
assist  him. 


CIPHER  LETTER. 

CHARLES  DUELL. 
For  the  Prosecution. — June  5. 

I  reside  in  Washington.  I  was  recently 
engaged  in  business,  driving  piles  at  More- 
head  City,  N.  C.  While  there,  I  found  a  let 
ter  floating  in  the  water;  it  was  in  cipher. 
My  attention  was  first  called  to  it  by  Mr. 
Ferguson,  who  was  working  there.  The  en 
velope  was  addressed  "John  W.  Wise."  I 
made  inquiries  relative  to  the  person  to  whom 
it  was  addressed,  but  I  could  hear  of  no  one 
of  that  name  in  North  Carolina. 

[The  translation  of  the  letter  was  here  read,  and  the 
original  put  in  evidence.] 

WASHINGTON,  April  the  15,  '65. 
DEAR  JOHN:  I  am  happy  to  inform  you 
that  Pet  has  done  his  work  well.  He  is  safe, 
and  Old  Abe  is  in  hell.  Now,  sir,  all  eyes 
are  on  you.  You  must  bring  Sherman — 
Grant  is  in  the  hands  of  Old  Gray  ere  this. 
Red  Shoes  showed  lack  of  nerve  in  Sew- 
ard's  case,  but  fell  back  in  good  order. 


Johnson  must  come.  Old  Crook  has  him  in 
charge. 

Mind  well  that  brother's  oath,  and  you  will 
have  no  difficulty;  all  will  be  safe,  and  en 
joy  the  fruit  of  our  labors. 

We  had  a  large  meeting  last  night.  All 
were  bent  in  carrying  out  the  programme  to 
the  letter.  The  rails  are  laid  for  safe  exit. 

Old  ,  always  behind,  lost  the  pop  at 

City  Point. 

Now,  I  say  again,  the  lives  of  our  brave  offi 
cers,  and  the  life  of  the  South  depend  upon 
the  carrying  this  programme  into  effect.  No. 
Two  will  give  you  this.  It's  ordered  no  more 
letters  shall  be  sent  by  mail.  When  you 
write,  sign  no  real  name,  and  send  by  some 
of  our  friends  who  are  coming  home.  We 
want  you  to  write  us  how  the  news  \vas  re 
ceived  there.  We  receive  great  encourage 
ment  from  all  quarters.  I  hope  there  will 
be  no  getting  weak  in  the  knees.  1  was  in 
Baltimore  yesterday.  Pet  had  not  got  there 
yet.  Your  folks  are  well,  and  have  heard 
from  you.  Don't  lose  your  nerve. 

C.  B.  No.  FIVE. 

The  letter  just  read,  is,  I  believe,  a  correct 
translation  of  the  cipher. 

Cross-examined  by  MR.  AIKEN. 

In  making  the  translation  I  had  the  as 
sistance  of  a  gentleman  in  North  Carolina, 
who  told  me  he  had  seen  the  cipher  before. 
We  first  supposed,  by  its  beginning  with  a 
W,  that  it  was  dated  at  Wilmington.  The 
first  evening  we  tried  it  with  Wilmington, 
but  we  could  not  make  out  any  thing.  The 
next  evening  we  tried  the  word  "Washing 
ton,"  and  "April,"  and  made  an  alphabet, 
and  stuck  figures  and  characters  under  the 
letters  of  the  alphabet,  and  proceeding  in 
that  way  we  at  length  worked  it  out. 

JAMES  FERGUSON. 
For  the  Prosecution. — June  5. 

I  have  recently  been  at  Morehead  City. 
N.  C.,  where  I  have  been  working  under  Mr. 
Duell.  While  there,  I  discovered  a  letter 
floating  in  the  water  when  we  were  at  work, 
and  called  his  attention  to  it.  The  letter 
which  has  been  read  is  the  same  as  was 
picked  up;  and  I  identify  the  envelope  as  the 
same.  We  found  it  either  on  the  1st  or 
2d  of  May  last. 


THE  "LON"  LETTER. 

CHARLES  DAWSON. 

For  the  Prosecution. — June  2. 

I  am  a  clerk  at  the  National  Hotel  in 
this  city.  In  looking  among  the  initials  for  a 
letter  for  a  gentleman  whose  name  begins  with 
B,  I  found  a  letter  addressed  "  J.  W.  B." 


THE    "LON   LETTER.' 


43 


The  initials  struck  me  as  being  rather  pe 
culiar,  and  I  took  the  letter  unopened  to 
Judge  Advocate  Bingham,  about  the  24th 
of  May. 

[The  letter  was  read  as  follows,  and  it  and  the  envelope 
were  put  in  as  evidence :] 


[P.  0.  stamp.] 

Cumberland, 
May  8. 


ENVELOPE. 


J.  W.  B., 

National  Hotel, 

Washington, 


SOUTH  BRANCH  BRIDGE,  April  6,  1865. 

FRIEND  WILKES  :  1  received  yours  of  March 
12th.  and  reply  as  soon  as  practicable.  I  saw 
French,  Brady,  and  others  about  the  oil  specu 
lation.  The  subscription  to  the  stock  amounts 
to  $8,000,  and  I  add  $1,000  myself,  which  is 
about  all  I  can  stand.  Now,  when  you  sink 
your  well  go  DEEP  enough;  don't  fail,  every 
thing  depends  on  you  and  your  helpers.  If 
you  can't  get  through  on  your  trip,  after  you 
strike  He,  strike  through  Thornton  Gap,  and 
cross  by  Capon,  Romney's,  and  down  the 
Branch,  and  I  can  keep  you  safe  from  all 
hardships  for  a  year.  1  am  clear  of  all  sur 
veillance,  now  that  infernal  Purely  is  beat.  1 
hired  that  girl  to  charge  him  with  an  out 
rage,  and  reported  him  to  old  Kelly,  which  sent 
him  in  the  shade,  but  he  suspects  to  (too) 
damn  much  now.  Had  he  better  be  silenced 
for  good?  I  send  this  up  by  Tom,  and  if  he 
don't  get  drunk  you  will  get  it  the  9th;  at  all 
events,  it  can't  be  understood  if  lost.  I  can't 
half  write.  I  have  been  drunk  for  two  days. 
Don't  write  so  much  highfalutin  next  time. 
No  more;  only  Jake  will  be  at  Green's  with 
the  funds.  Burn  this. 

Truly,  yours,  LON. 

Sue  Guthrie  sends  much  love. 

The  only  guest  at  the  National  Hotel  that 
I  knew  of  to  whom  the  initials  J.  W.  B.  be 
longed  was  John  Wilkes  Booth.  Any  letters 
addressed  to  Mr.  Booth  in  full  would  be  put 
into  his  box,  as  he  had  a  room  at  the  house. 
These  being  mere  initials,  the  letter  was  put 
in  with  sundry  letters  for  those  who  had  no 
room  in  the  house. 

ROBERT  PURDY. 

For  the  Prosecution.  —  June  16. 

I  reside  in  Marshall  County,  West  Virginia, 
near  the  Ohio  River.  I  have  been  in  the 
service  of  the  United  States  since  the  llth  of 
December,  1861.  Since  the  23d  of  August 
last,  I  have  belonged  to  a  scouting  company. 

The  letter  signed  "  Lon  "  I  never  saw  until 
it  was  published  in  the  public  papers.  I 
have  no  knowledge  whatever  by  whom  it  was 
written.  I  have  heard  of  French,  who  is  re 
ferred  to  in  the  letter,  but  I  do  not  know  of 
any  one  named  Brady  living  on  South  Branch. 

There  is  a  man  in  that  region  of  country 
named  Lon  ;  his  full  name  is  Leonidas  Mc- 
Aleer,  but  he  generally  goes  by  the  name  of 


Lon.  I  have  seen  his  handwriting.  He 
showed  me  some  notes  that  he  said  he  had 
been  black-mailed  about.  The  writing  of 
the  letter  resembles  his.  I  am  the  Purdy  re 
ferred  to  in  the  letter. 

I  captured  a  rebel  spy  a  few  miles  from 
Lon's  house.  I  understood  he  was  to  meet 
Lon  McAleer  that  day  to  carry  information 
there.  I  flanked  the  field  and  captured  him, 
in  company  with  two  men  named  Darnduff, 
and  a  very  reliable  colored  scout  belonging  to 
General  Kelly.  Lon  McAleer  had  been  play 
ing  both  sides,  loyal  and  disloyal;  but  as  he 
had  been  lately  bragging  of  his  Unionism,  I 
thought  he  would  be  glad  to  learn  that  the 
great  rebel  spy  had  been  captured,  so  I  rode 
down  to  him  and  told  him.  He  cursed  me 
for  capturing  the  man,  and  said  1  should 
have  taken  his  money  and  let  him  go.  He 
said,  when  he  went  out  and  saw  a  small 
squad  of  rebels  who  could  do  no  great  dam 
age  to  the  railroad,  he  did  not  report  it;  but 
when  he  saw  a  force  that  could  operate 
against  Cumberland  and  New  Creek,  he  al 
ways  reported  it,  A  day  or  two  after  that,  I 
overtook  a  girl  near  his  house.  I  halted  her 
and  searched  her,  and  found  her  carrying  let 
ters.  This  was  in  the  winter,  in  January,  I 
think.  A  charge,  such  as  that  alluded  to  in 
the  letter  was  made  against  me,  but  it  was 
entirely  false,  and  I  afterward  went  to  Mc 
Aleer  to  get  the  thing  settled.  McAleer  had 
a  white  servant  named  Tom,  a  deaf  man,  who 
afterward  married  this  girl.  I  have  heard 
he  drinks. 

I  do  not  know  any  person  of  the  name  of 
Green  in  that  neighborhood;  but  there  are 
Greens  some  seventy  or  eight  miles  off,  and 
there  may  be  other  families  of  that  name  that 
I  do  not  know  of. 

The  route  through  Thornton  Gap,  crossing 
by  Capon,  Romney's,  and  down  the  Branch, 
is  an  obscure  route,  of  which  I  never  knew 
till  lately.  It  passes  right  through  by  Green's 
house  at  Thornton  Gap.  Green's  reputation 
is  that  of  a  very  disloyal  man. 

I  do  not  know  the  Sue  Guthrie  mentioned, 
but  I  have  ascertained  that  she  is  a  lady  who 
lived  with  Mr.  French.  I  once  wrote  a  letter 
to  French,  warning  him  that  some  deserters 
from  our  army  were  going  to  commit  robbery 
at  his  house.  It  was  then  that  McAleer  told 
me  that  French  was  his  father-in-law. 

Cross-examined  by  MR.  AIKEN. 

I  am  acting  for  the  Government  as  detec 
tive  arid  scout.  I  have  been  charged  with 
writing  that  letter  myself.  I  was  at  South 
Branch  Bridge  in  January  last.  South  Branch 
empties  into  the  Potomac  River,  and  is  from 
twenty-one  to  twenty-three  miles  from  Cum  ' 
berland.  There  is  a  railroad  through  South 
Branch  to  Cumberland.  People  at  South 
Branch  Bridge  are  not  in  the  habit  of  taking 
their  letters  to  Cumberland  to  mail.  They 
generally  take  them  to  Green  Spring  Run, 
about  one  and  three-fourths  miles  above. 


THE    CONSPIRACY   TRIAL. 


PLOT   TO   CAPTURE. 

SAMUEL  KXAPP  CHESTER. 
For  the  Prosecution. — May  12. 

I  am  by  profession  an  actor,  and  have 
known  J.  Wilkes  Booth  a  great  many  years. 
For  six  or  seven  years  I  have  known  him 
intimately.  In  the  early  part  of  November 
last  I  met  him  in  New  York,  and  asked  him 
why  he  was  not  acting.  He  told  me  that  he 
did*  not  intend  to  act  in  this  portion  of  the 
country  again;  that  he  had  taken  his  ward 
robe  to  Canada,  and  intended  to  run  the 
blockade.  I  saw  him  again  on  the  24th  or 
25th  of  November,  about  the  time  we  were 
to  play  "Julius  Ccesar"  in  New  York,  which 
we  did  play  on  the  25th.  I  asked  him  where 
his  wardrobe  was;  he  said  it  was  still  in 
Canada,  in  charge  of  a  friend.  I  think  he 
named  Martin  in  Montreal. 

He  told  me  he  had  a  big  speculation  on 
hand,  and  asked  me  to  go  in  with  him.  I 
met  him  on  Broadway  as  he  was  talking 
with  some  friends.  They  were  joking  with 
him  about  his  oil  speculations.  After  he  left 
them,  he  told  me  he  had  a  better  speculation 
than  that  on  hand,  and  one  they  wouldn't 
laugh  at.  Some  time  after  that  I  met  him 
again,  and  he  asked  me  how  I  would  like  to 
go  in  with  him.  I  told  him  I  was  without 
means,  and  therefore  could  not.  He  said 
that  didn't  matter;  that  he  always  liked  me, 
and  would  furnish  the  means.  He  then  re 
turned  to  Washington,  from  which  place  I 
received  several  letters  from  him.  He  told 
me  he  was  speculating  in  farms  in  lower 
Maryland  and  Virginia;  still  telling  me  that 
he  was  sure  to  coin  money,  and  that  I  must 
go  in  with  him. 

About  the  latter  part  of  December,  or  early 
in  January,  he  came  to  New  York,  and  called 
on  me  at  my  house,  No.  45  Grove  Street.  He 
asked  me  to  take  a  walk  with  him  which  I 
did.  We  went  into  a  saloon  known  as  the 
"House  of  Lords,"  on  Houston  Street,  and 
remained  there  perhaps  an  hour,  eating  and 
drinking.  We  afterward  went  to  another 
saloon  under  the  Revere  House,  after  which 
we  started  up  Broadway.  He  had  often 
mentioned  his  speculation,  but  would  never 
mention  what  it  was.  If  I  would  ask  him, 
he  would  say  he  would  tell  me  by-and-by. 
When  we  came  to  the  corner  of  Bleecker 
Street,  I  turned  and  bade  him  good  night. 
He  asked  me  to  walk  further  with  him,  and 
we  walked  up  Fourth  Street,  because  he  said 
Fourth  Street  was  not  so  full  of  people  as 
Broadway,  and  he  wanted  to  tell  me  about 
that  speculation.  When  we  got  into  the  un 
frequented  portion  of  the  street,  he  stopped 
and  told  rne  that  he  was  in  a  large  conspiracy 
to  capture  the  heads  of  the  Government,  in 
cluding  the  President,  and  to  take  them  to 
Richmond.  I  asked  him  if  that  was  the 
speculation  that  he  wished  me  to  go  into. 
He  said  it  was.  I  told  him  I  could  not  do  it; 


that  it  was  an  impossibility;  and  asked  him 
to  think  of  rny  family.  He  said  he  had  two 
or  three  thousand  dollars  that  he  could  leave 
them.  He  urged  the  matter,  and  talked  with 
me,  I  suppose,  half  an  hour;  but  I  still  re 
fused  to  give  my  assent.  Then  he  said  to 
me,  "You  will  at  least  not  betray  me;"  and 
added,  "  You  dare  not."  He  said  he  could 
implicate  me  in  the  affair  any  how.  The 
party  he  said  were  sworn  together,  and  if  I 
attempted  to  betray  them,  I  would  be  hunted 
down  through  life.  He  urged  me  further, 
saying  I  had  better  go  in.  I  told  him  "No," 
and  bade  him  good  night,  and  went  home. 

He  told  me  that  the  affair  was  to  take 
place  at  Ford's  Theater  in  Washington,  and 
the  part  he  wished  me  to  play,  in  carrying 
out  this  conspiracy,  was  to  open  the  back 
door  of  the  theater  at  a  signal.  He  urged 
that  the  part  I  would  have  to  play  would  be 
a  very  easy  affair,  and  that  it  was  sure  to  suc 
ceed,  but  needed  some  one  connected  or  ac 
quainted  with  the  theater.  He  said  every 
thing  was  in  readiness,  and  that  there  were 
parties  on  the  other  side  ready  to  co-operate 
with  them.  By  these  parties  I  understood 
him  to  mean  the  rebel  authorities  and  others 
opposed  to  our  Government.  He  said  there 
were  from  fifty  to  one  hundred  persons  en 
gaged  in  the  conspiracy. 

He  wrote  to  me  again  from  Washington 
about  this  speculation;  I  think  it  must  have 
been  in  January.  I  did  not  keep  my  letters. 
Every  Sunday  I  devoted  to  answering  my 
correspondence  and  destroying  my  letters. 

In  January  I  got  a  letter  from  him,  saying 
I  must  come.  This  was  the  letter  in  which 
he  told  me  his  plan  was  sure  to  succeed.  I 
wrote  back,  saying  that  it  was  impossible, 
and  I  would  not  come.  Then  by  return  mail, 
I  think,  I  got  another  letter,  with  fifty  dollars 
inclosed,  saying,  I  must  come,  and  must  be 
there  by  Saturday  night.  I  did  riot  go,  nor 
have  1  been  out  of  New  York  since  last 
summer.  The  next  time  he  came  to  New 
York,  which  I  think  was  in  February,  he 
called  on  me  again,  and  asked  me  to  take  a 
walk  with  him,  and  I  did  so.  He  then  told 
me  that  he  had  been  trying  to  get  another 
party,  one  John  Matthews,  to  join  him,  and 
when  he  told  Matthews  what  he  wanted,  the 
man  was  very  much  frightened,  and  would 
not  join  him  ;  and  he  said  he  would  not  have 
cared  if  he  had  sacrificed  him.  1  told  him 
I  did  not  think  it  was  right  to  speak  in  that 
manner.  He  said  no;  but  Matthews  was  a 
coward,  and  was  not  fit  to  live.  lie  then 
urged  me  again  to  join,  and  told  me  I  must 
do  so.  He  said  there  was  plenty  of  money 
in  the  affair;  arid  that,  if  I  joined,  I  never 
would  want  for  money  again  as  long  as  I 
lived.  He  said  the  President  and  some  of 
the  heads  of  the  Government  came  to  the 
theater  very  frequently  during  Mr.  Forrest's 
engagements.  I  desired  him  not  to  again 
mention  the  affair  to  me,  but  to  think  of  my 
poor  family.  He  said  he  would  ruin  me  in 


BOOTH  S    OIL    SPECULATIONS. 


45 


the  profession  if  I  did  not  go.  I  told  him 
I  could  not  help  that,  and  begged  him  not  to 
mention  the  affair  to  me. 

When  he  found  I  would  not  go,  he  said  he 
honored  my  mother  and  respected  my  wife, 
and  he  was  sorry  he  had  mentioned  this 
affair  to  me;  but  told  me  to  make  my  mind 
easy,  and  he  would  trouble  me  no  more.  I 
then  returned  him  the  money  he  had  sent 
me.  He  told  me  he  would  not  allow  me  to 
do  so,  but  that  he  was  so  very  short  of  funds, 
and  that  either  he  or  some  other  party  must 
go  to  Richmond  to  obtain  means  to  carry  out 
their  designs. 

On  Friday,  one  week  previous  to  the  assas 
sination,  I  saw  him  again  in  New  York.  We 
were  in  the  "House  of  Lords,"  sitting  at  a 
table.  We  had  not  been  there  long  before 
he  exclaimed,  striking  the  table,  "What  an 
excellent  chance  I  had  to  kill  the  President, 
if  I  had  wished,  on  inauguration  day ! " 
He  said  he  was  as  near  the  President  on 
that  day  as  he  was  to  me. 

Cross-examination  by  MR.  EWING. 

Booth  spoke  of  the  plot  to  capture  the 
President,  not  to  assassinate  him,  and  to 
take  him  to  Richmond.  By  the  expression 
"other  side,"  I  understood  him  to  mean 
across  the  lines — across  the  Potomac. 

Booth  did  not  say  any  thing  as  to  the  means 
he  had  provided  or  proposed  to  provide  for 
conducting  the  President  after  he  should  be 
seized.  On  one  occasion  he  told  me  that  he 
was  selling  off  his  horses;  that  was  after  he 
had  told  me  he  had  given  up  this  project  of 
the  capture.  It  was,  I  think,  in  February 
that  he  said  he  had  abandoned  the  idea  of 
capturing  the  President  and  the  heads  of  the 
Government.  The  affair,  he  said,  had  fallen 
through,  owing  to  some  parties  backing  out. 
It  was  on  Friday,  the  7th  of  April,  one  week 
previous  to  the  assassination,  that  he  said 
what  an  excellent  chance  he  had  had  for 
killing  the  President. 


BOOTH'S  OIL  SPECULATIONS. 

JOSEPH  H.  SIMONDS. 
For  the  Prosecution. — May  13. 

1  was  acquainted  with  J.  Wilkes  Booth  in 
his  lifetime,  and  was  his  business  agent,  par 
ticularly  in  the  oil  region.  I  did  some  little 
business  for  him  in  the  City  of  Boston,  but  it 
was  very  little,  and  was  entirely  closed  up 
before  I  left  there. 

Mr.  Booth's  interest  in  the  oil  speculations 
was  as  follows:  He  owned  a  third  undivided 
interest  in  a  lease  of  three  and  a  half  acres 
on  the  Alleghany  River,  near  Franklin.  The 
land  interest  cost  $4,000.  He  paid  $2,000— 
that  being  one-half  of  it.  He  also  purchased, 
for  $1,000,  an  interest  in  an  association  there 
owning  an  undivided  thirtieth  of  a  contract 


That  is  all  that  he  ever  absolutely  purchased. 
There  was  money  spent  for  expenses  on  this 
lease,  previous  to  his  purchase  of  the  land 
interest.  He  never  realized  a  dollar  from 
any  interest  possessed  in  the  oil  region.  His 
speculations  were  a  total  loss. 

The  first  interest  he  acquired  in  any  way 
was  in  December,  1863,  or  January,  1864.  I 
accompanied  him  to  the  oil  regions  in  June, 
1864,  for  the  purpose  of  taking  charge  of  his 
business  there.  The  whole  amount  invested 
by  him  in  this  Alleghany  River  property,  in 
every  way,  was  about  $5,000,  and  the  other 
investment  was  about  $1,000,  making  $6,000 
in  all. 

His  business  was  entirely  closed  out  there 
on  the  27th  of  September,  1864. 

One  of  the  conveyances  was  made  to  his 
brother,  Junius  Brutus  Booth,  which  was 
without  compensation  ;  but  a  consideration 
was  mentioned  in  the  deed.  The  other 
transfer  was  to  me,  and  it  was  done  in  con 
sideration  of  my  services,  for  which  I  never 
received  any  other  pay.  There  was  not  a 
dollar  paid  to  J.  Wilkes  Booth  at  all  for 
these  conveyances,  and  he  paid  all  the  ex 
penses  on  the  transfer  and  the  conveyances. 


JACOB  THOMPSON'S  BANK  ACCOUNT, 

ROBERT  ANSON  CAMPBELL. 
For  the  Prosecution. — May  20. 

I  reside  in  Montreal,  Canada,  and  am  first 
teller  of  the  Ontario  Bank,  of  that  city. 

I  know  Mr.  Jacob  Thompson  very  well. 
His  account  with  the  Ontario  Bank  I  hold 
in  my  hand.  It  commenced  May  30,  1864, 
and  closed  April  11,  1865.  Prior  to  May 
30th,  he  left  with  us  sterling  exchange,  drawn 
on  the  rebel  agents  in  Liverpool,  for  collection. 

The  first  advice  we  had  was  May  30th, 
when  there  was  placed  to  his  credit  £2,061 
17s.  Ijrf.,  and  £20,618  11*.  4c£,  amounting  to 
$109,965.63.  The  aggregate  amount  of  the 
credits  is  $649,873.28,  and  there  is  a  balance 
still  left  to  his  credit  of  $1,766.23;  all  the 
rest  has  been  drawn  out.  Since  about  the 
first  of  March  he  has  drawn  out  $300,000,  in 
sterling  exchange  and  deposit  receipts.  On 
the  6th  of  April  last  there  is  a  deposit  re 
ceipt  for  $180,000.  The  banks  in  Canada 
give  deposit  receipts,  which  are  paid  when 
presented,  upon  fifteen  days'  notice.  On  the 
8th  of  April  he  drew  a  bill  of  £446  12*.  Irf., 
and  on  the  same  day  £4,000  sterling.  On 
the  24th  of  March  he  drew  $100,000  in  ex 
change;  at  another  time  $19,000.  This  ster 
ling  exchange'  was  drawn  to  his  credit,  and 
also  the  deposit  receipt. 

Mr.  Jacob  Thompson  has  left  Montreal 
since  the  14th  of  April  last.  I  heard  him 
say  that  he  was  going  away.  He  used  to 
come  to  the  bank  two  or  three  times  a  week, 
and  the  last  time  he  was  in  he  gave  a  check 


46 


THE    CONSPIRACY   TRIAL. 


to  the  hotel-keeper,  which  I  cashed,  and  he  I 
then  left  the  hotel.  His  friends  stated  to  me 
that  he  was  going  to  Halifax,  overland.  Nav 
igation  was  not  open  then,  and  I  was  told 
that  he  was  going  overland  to  Halifax,  and 
thence  to  Europe.  1  thought  it  strange  at 
the  time  that  he  was  going  overland,  when 
by  waiting  two  weeks  longer  he  could  have 
taken  the  steamer;  and  it  was  talked  of  in 
the  bank  among  the  clerks. 

The  account  was  opened  with  Jacob 
Thompson  individually;  the  newspaper  re 
port  was  that  he  was  financial  agent  of  the 
Confederate  States.  We  only  knew  that  he 
brought  Southern  sterling  exchange  bills, 
drawn  on  Southern  agents  in  the  old  coun 
try,  and  brought  them  to  our  bank  for  col 
lection.  How  they  came  to  him  we  did  not 
know.  He  was  not,  as  far  as  I  know,  en 
gaged  in  any  business  in  Canada  requiring 
these  large  sums  of  money.  He  had  other 
large  money  transactions  in  Canada.  I  knew 
of  one  transaction  of  $50,000,  that  came 
through  the  Niagara  District  Bank,  at  St. 
Catherines;  a  check  drawn  to  the  order  of 
Mr.  Clement  C.  Clay,  and  deposited  by  him 
in  that  bank;  they  sent  it  to  us,  August  16, 
1864,  to  put  it  to  their  credit. 

Thompson  has  several  times  bought  from 
us  United  States  notes,  or  greenbacks.  On 
August  25th  he  bought  $15,000  in  green 
backs,  and  on  July  14th,  $19,125.  This  was 
the  amount  he  paid  in  gold,  and  at  that  time 
the  exchange  was  about  55.  I  could  not  say 
what  the  amount  of  greenbacks  was,  but  that 
is  what  he  paid  for  it  in  gold.  On  March 
14th,  last,  he  bought  $1,000  worth  of  green 
backs  at  44|,  for  which  he  paid  $552  20  in 
gold.  On  the  20th  of  March  he  bought 
£6,500  sterling  at  9^.  He  also  bought  drafts 
on  New  York  in  several  instances. 

J.  Wilkes  Booth,  the  actor,  had  a  small 
account  at  our  bank.  I  had  one  or  two 
transactions  with  him,  but  do  not  remember 
more  at  present.  He  may  have  been  in  the 
bank  a  dozen  times;  and  1  distinctly  remem 
ber  seeing  him  once.  lie  has  still  left  to  his 
credit  $455,  arising  from  a  deposit  made  by 
him,  consisting  of  $200  in  $20  Montreal  bills, 
and  Davis  s  check  on  Merchants'  Bank  of 
$255.  Davis  is  a  broker,  who  kept  his  office 
opposite  the  St.  Lawrence  Hall,  and  is,  I 
think,  from  either  Richmond  or  Baltimore. 
When  Booth  came  into  the  bank  for  this 
exchange,  he  bought  a  bill  of  exchange  for 
£61  and  some  odd  shillings,  remarking,  "  I 
am  going  to  run  the  blockade,  and  in  case  I 
should  be  captured,  can  my  capturers  make 
use  of  the  exchange?"  I  told  him  they 
could  not  unless  he  indorsed  the  bill,  which 
was  made  payable  to  his  order.  He  then 
eaid  he  would  take  $300,  and  pulled  out  that 
amount,  I  think,  in  American  gold.  I  figured 
up  what  $300  would  come  to  at  the  rate  of 
exchange — I  think  it  was  9| — and  gave  him 
a  bill  of  exchange  for  £61  and  some  odd 
shillings. 


[The  bills  of  exchange  found  on  Booth's  body  at  the 
time  of  his  capture  were  here  exhibited  to  the  witness.] 

Those  are  the  Ontario  Bank  bills  of  ex 
change  that  were  sold  to  Booth,  bearing  date 
October  27,  1864. 


BOOTH   AT  THE  NATIONAL   HOTEL. 

G.  W.  BUNKER. 
For  the  Prosecution. — May  12. 

I  am  a  clerk  at  the  National  Hotel  in  this 
city.  John  Wilkes  Booth  has  been  in  the 
habit  of  stopping  at  that  hotel  when  he  came 
to  the  city.  From  the  register,  which  I  have 
examined,  I  find  that  Booth  was  not  at  the 
National  Hotel  during  the  month  of  October, 
1864.  He  arrived  in  the  evening  of  Novem 
ber  9th,  and  occupied  room  "20;"  left  on  an 
early  train  on  the  morning  of  the  llth  ;  re 
turned  November  14th,  in  the  early  part  of 
the  evening,  and  left  on  the  16th.  His  next 
arrival  was  December  12th;  left  December 
17th  by  the  morning  train;  he  arrived  again 
December  22d;  left  on  the  24th  ;  arrived  De 
cember  31  ;  left  January  l()th;  arrived  again 
January  12th  ;  left  on  the  28th  ;  arrived  again 
February  22d;  occupied  room  "231,"  in  com 
pany  with  John  T.  II.  Wentworth  and  John 
McCullough.  Booth  left  February  28th  in 
8:15  A.  M.  train,  closing  his  account  to  date, 
inclusive.  His  name  does  not  appear  on  the 
register,  but  another  room  is  assigned  to  him, 
and  his  second  account  commences  March 
1st,  without  any  entry  on  the  register  of  that 
date.  On  the  2d,  3d,  and  4th  he  is  called  at 
8  o'clock  A.  M. ;  21st  of  March,  pays  $50  on 
account,  and  left  that  day  on  7:30  P.  M.  train  ; 
arrived  again  March  25th — room  "  231 ;"  took 
tea,  arid  left  April  1st  on  an  afternoon  train; 
arrived  April  8th.  room  "228,"  and  remained 
there  until  the  assassination  of  the  President 

[The  attention  of  the  witness  was  directed  to  the  prison 
ers  at  the  bar.] 

The  only  one  of  the  accused  I  know  is  the 
one  with  the  black  whiskers  and  imperial, 
[pointing  to  the  accused.  Michael  O'Lauglilin.] 
I  do  not  know  his  name,  but  know  him  by 
sight.  He  frequently  called  on  Booth  at  the 
hotel.  I  do  not  think  I  saw  him  the  last 
few  days  of  Booth's  stay  there. 

[A  certified  memorandum  of  the  above  dates,  copied 
from  the  register  of  the  National  Hotel,  was  hero  offered 
in  evidence.] 


JEFF.   DAVIS  AND  THE   ASSASSINA 
TION. 

LEWIS  F.  BATES. 
For  the  Prosecution. — May  30. 

I  reside  in  Charlotte,  N.  C.,  where  I  have 
resided  a  little  over  four  years.  I  am  Super 
intendent  of  the  Southern  Express  Company 
for  the  State  of  North  Carolina.  I  am  a 
native  of  Massachusetts.  On  the  19th  of 


PLOT    TO   DESTROY   STEAMERS,    GUN-BOATS,  ETC. 


47 


April,  Jefferson  Davis  stopped  at  my  hous 
in  Charlotte,  when  he  made  an  address  to  th 
people  from  the  steps  of  my  house.  Whil 
speaking,  a  telegram  from  John  0.  Breckin 
ridge  was  handed  him. 

[The  following  telegram  was  here  read  to  the  Commis 
•ion:] 

GUEENSBORO,  April  19,  1SG5. 
His  Excellency  President  Davis: 

President  Lincoln  was  assassinated  in  the 
theater  in  Washington  on  the  night  of  the 
llth  instant.  Seward's  house  was  entered  on 
the  same  night,  and  he  was  repeatedly  stabbed 
and  is  probably  mortally  wounded. 

JOHN  C.  BRECKINRIDGE. 

In  concluding  his  speech,  Jefferson  Davis 
read  that  dispatch  aloud,  and  made  this  re 
mark,  "If  it  were  to  be  done,  it  were  better 
it  were  well  done."  I  am  quite  sure  these  are 
the  words  he  used. 

A  day  or  two  afterward,  Jefferson  Davis 
and  John  C.  Breckinridge  were  present  at  my 
house,  when  the  assassination  of  the  Presiden 
was  the  subject  of  conversation.  In  speak 
ing  of  it,  John  C.  Breckinridge  remarkec 
to  Davis,  that  he  regretted  it  very  much 
that  it  was  very  unfortunate  for  the  people 
of  the  South  at  that  time.  Davis  replied 
"Well,  General,  I  don't  know,  if  it  were  to 
be  done  at  all,  it  were  better  that  it  were  well 
done  ;  and  if  the  same  had  been  done  to  And)1 
Johnson,  the  beast,  and  to  Secretary  Stanton, 
the  job  would  then  be  complete."  No  re 
mark  was  made  at  all  as  to  the  criminality 
of  the  act,  and  from  the  expression  used  by 
John  C.  Breckinridge,  I  drew  the  conclusion 
that  he  simply  regarded  it  as  unfortunate  for 
the  people  of  the  South  at  that  time. 

J.  C.  COURTNEY. 
For  the  Prosecution. — May  30. 

I  reside  in  Charlotte,  N.  C.,  and  am  en 
gaged  in  the  telegraphing  business,  in  conn'ec- 
tion  with  the  Southern  Express  Company. 

The  telegram  to  which  Mr.  Bates  has  just 
testified  is  a  true  copy  of  the  message  that  was 
transmitted  to  Jefferson  Davis  on  the  19th  of 
April  last,  and  signed  John  C.  Breckinridge. 
I  was  standing  by  the  operator  when  the 
message  was  received.  Jefferson  Davis  re 
ceived  the  message  at  Mr.  Bates's  house  in 
Charlotte,  to  which  place  he  had  come  from 
Greensburg  or  Concord,  where  he  had  stopped 
the  night  before. 

JAMES  E.  RUSSELL. 
For  the  Prosecution. — June  9. 

I  reside  in  Springfield,  Mass.  I  have 
known  Lewis  F.  Bates  for  about  twenty-five 
years.  For  the  last  five  years  I.  have  not 
known  any  thing  of  his  whereabouts,  until  I 
learned  from  him  that  he  had  been  living  in 
Charlotte,  N.  C.  He  was  in  business  as  bag- 
gage-maeter  on  the  Western  Railroad,  Massa 


chusetts,  while  I  was  conductor,  and  I  never 
heard  any  thing  against  his  reputation  for 
truth. 

WILLIAM  L.  CRANE. 
For  the  Prosecution. — June  9. 

I  am  the  agent  of  Adams's  Express  Com 
pany  in  New  York  Eastern  Division.  I  have 
known  Lewis  F.  Bates  since  1848,  and  have 
never  heard  any  thing  against  his  reputation 
as  a  man  of  truth  and  integrity. 

DANIEL  II.  WILCOX. 
For  the  Prosecution. — June  9. 

I  left  the  South  a  year  ago  last  April.  I 
have  known  Mr.  L.  F.  Bates  for  two  or  three 
years  quite  intimately ;  he  occupied  a  position 
of  great  trust  and  responsibility,  and  is  a  man 
of  truth  and  integrity.  He  "bore  the  best 
reputation  possible.  His  character  is  without 
reproach,  as  far  as  I  know. 

JULES  SOULE. 
For  the  Prosecution. — June  9. 

I  reside  in  the  city  of  New  York  at 
present;  for  the  past  few  years  1  have  lived 
in  Columbia,  S.  C.  I  knew  Mr.  L.  F.  Bates; 
lie  bore  the  reputation  of  a  truthful  and  re- 
iable  man,  in  every  respect,  to  the  best  of 
my  knowledge.  We  have  been  intimately 
connected  in  business  for  the  last  three  or 
bur  years.  The  position  he'  occupied  was 
one  of  high  responsibility  and  trust. 

MAJOR  T.  T.  ECKERT. 
For  the  Prosecution. — June  9. 

Mr.  L.  F.  Bates  was  brought  here  by  the 
>rder  of  the  Secretary  of  War. 


PLOT   TO  DESTOY   STEAMERS,  GUN 
BOATS,  ETC. 

REV.  W.  II.  RYDER. 

For  the  Prosecution. — May  18. 

I  reside  in  Chicago.  On  the  9th  of  April 
left  that  city  for  Richmond,  Va.;  arrived 
here  the  14th,  and  remained  there  until  the 
21et  of  that  month.  While  there  I  visited 
he  State  Capitol,  and  found  the  archives  of 
he  so-called  Confederate  States  scattered 
bout  the  floor;  and,  in  common  with  others, 
ook  as  mdny  of  these  as  I  chose.  I  collected 
uite  a  number  of  papers  in  different  rooms 
nd  from  among  the  rubbish.  There  were 
ne  or  two  persons  with  me,  and,  as  we 
andled  the  papers,  any  thing  that  seemed 
mportant  or  interesting  we  put  into  our 
ockets.  Among  the  papers  so  found  was 
his  letter. 


THE    CONSPIRACY    TRIAL. 


[The  following  letter  was  then  read  and  offered  in  evi 
donee :] 

RICHMOND,  February  11,  1865. 

His  Excellency  Jefferson  Davis,  Prest  C.  S.  A 
SIR:  When  Senator  Johnson  of  Missour 
and  myself  waited  on  you  a  few  days  since 
in  relation  to  the  prospect  of  annoying  anc 
harassing  the  enemy  by  means  of  burning 
their  shipping,  towns,  etc.,  there  were  several 
remarks  made  by  you  upon  the  subject  that 
I  was  not  fully  prepared  to  answer,  but  which 
upon  subsequent  conference  with  parties  pro 
posing  the  enterprise,  I  find  can  not  apply  as 
objections  to  the  scheme. 

1.  The   combustible    material   consists   of 
several  preparations  and  not  one  alone,  and 
can  be  used  without  exposing  the  party  using 
them  to  the  least  danger  of  detection  what 
ever.     The  preparations  are  not  in  the  hands 
of  McDaniel,  but  are  in  the  hands  of  Pro 
fessor   McCullough,  and  are  known    but   to 
him  and  one  other  party,  as  I  understand. 

2.  There  is  no  necessity  for  sending  persons 
in  the  military  service  into  the  enemy's  coun 
try;  but  the  work  may  be  done  by  agents, 
and,  in  most  cases,  by  persons  ignorant  of  the 
facts,  and  therefore  innocent  agents. 

I  have  seen  enough  of  the  effects  that  can 
be  produced  to  satisfy  me,  that,  in  most  cases, 
without  any  danger  to  the  parties  engaged, 
and  in  others  but  very  slight,  we  can — 1. 
Burn  every  vessel  that  leaves  a  foreign  port 
for  the  United  States.  2.  We  can  burn  every 
transport  that  leaves  the  harbor  of  New 
York  or  other  Northern  port,  with  supplies 
for  the  armies  of  the  enemy  in  the  South. 
3.  Burn  every  transport  and  gunboat  on  the 
Mississippi  River,  as  well  as  devastate  the 
country  of  the  enemy,  and  fill  his  people  with 
terror  and  consternation.  I  am  not  alone  of 
this  opinion,  but  many  other  gentlemen  are 
as  fully  and  thoroughly  impressed  with  the 
conviction  as  I  am.  I  believe  we  have  the 
means  at  our  command,  if  promptly  appro 
priated  and  energetically  applied,  to  demor 
alize  the  Northern  people  in  a  very  short  time. 
For  the  purpose  of  satisfying  your  mind  upon 
the  subject,  I  respectfully,  but  earnestly,  re 
quest  that  you  will  have  an  interview  with 
General  Harris,  formerly  a  member  of  Con 
gress  from  Missouri,  who,  I  think,  is  able, 
from  conclusive  proofs,  to  convince  you  that 
what  I  have  suggested  is  perfectly  feasible 
and  practicable. 

The  deep  interest  I  feel  for  the  success  of 
our  cause  in  this  struggle,  and  the  conviction 
of  the  importance  of  availing  ourselves  of 
every  element  of  defense,  must  be  my  excuse 
for  writing  you,  and  requesting  you  to  invite 
General  Harris  to  see  you.  If  you  should  see 
proper  to  do  so,  please  signify  the  time  when 
it  will  be  convenient  for  you  to  see  him. 

I  am,  respectfully,  your  obedient  servant, 
W.  S.  OLDHAM. 

INDORSEMENT. 

Hon.  W.  S.  Oldham.  Richmond,  February 
12,  1865.  In  relation  to  plans  and  means  for 


burning  the  enemy's  shipping,  towns,  etc. 
Preparations  are  in  the  hands  of  Professor 
McCullough,  and  are  known  to  only  one  other 
party.  Asks  the  President  to  have  an  in 
terview  with  General  Harris,  formerly  a 
member  of  Congress  from  Missouri,  on  the 
subject. 

SECOND    INDORSEMENT. 

Secretary  of  State,  at  his  convenience,  please 
see  General  Harris,  and  learn  what  plan  he 
has  for  overcoming  the  difficulty  heretofore 
experienced.  J.  D 

20  Feb'y,  '65. 

Rec'd  Feb'y  17,  1865. 

JOHN  POTTS. 

For  the  Prosecution. — May  18. 

I  am  chief  clerk  in  the  War  Department, 
which  position  I  have  filled  for  upward  of 
twenty  years.  While  Jefferson  Davis  was 
Secretary  of  War,  I  had  abundant  opportuni 
ties  of  becoming  acquainted  with  his  hand 
writing,  and  became  perfectly  familiar  with 
it.  In  my  belief,  the  indorsement  on  that 
letter  just  read  is  in  his  handwriting. 

NATHAN  RICE. 
For  the  Prosecution. — May  18. 

I  was  requisition  clerk  eight  years  ago, 
when  Jefferson  Davis  was  Secretary  of  War, 
and  every  day  he  had  to  sign  the  requisitions 
that  came  to  me.  The  indorsement  on  the 
letter  signed  W.  S.  Oldham,  I  should  think, 
was  in  the  handwriting  of  Jefferson  Davis, 
I  had  ample  opportunities  of  becoming  ac 
quainted  with  his  handwriting,  seeing  from 
;en  to  twenty-five  signatures  of  his  every  day, 
and  sometimes  they  were  signed  in  my  pres 
ence. 

JOSHUA  T.  OWEN. 
For  the  Prosecution. — May  18. 

I  have  known  Professor  McCullough,  I 
suppose,  for  twenty  years ;  he  was  Professor 
of  Chemistry  at  Princeton  College.  At  Jef- 
lerson  College,  Pennsylvania,  where  I  grad- 
.iated  about  1839  or  1840,  he  was  Professor 
of  Mathematics,  and  if  my  recollection  serves 
me,  he  was  Assayer  at  the  Mint,  Philadelphia. 
He  has,  I  believe,  been  at  Richmond  during 
,he  rebellion,  in  the  service  of  the  Confed 
erates.  He  had  attained  some  distinction  as 
a  chemist,  perhaps  more  in  that  than  in  any 
hing  else. 

GENERAL  ALEXANDER  J.  HAMILTON. 
For  the  Prosecution. — May  20. 

I  am  a  citizen  of  the  State  of  Texas,  and 
was  formerly  a  member  of  Congress  from 
hat  state.  I  am  perfectly  familiar  with  the 
landwriting  of  Williamson  S.  Oldham.  The 
etter  which  has  just  been  introduced  in  evi 
dence,  signed  W.  S.  Oldham,  is  in  his  hand- 


DESTRUCTION  OF   STEAMBOATS,  ETC. 


49 


writing.  At  the  time  of  writing  this  letter 
he  was  a  member  of  the  Senate  of  the  so 
called  Confederate  States.  I  so  conclude 
because  I  was  present,  in  1861,  when  he  wa 
elected  for  six  years,  by  the  rebel  Legislator 
of  Texas,  to  a  seat  in  the  Senate  of  the  rebe 
Government,  and  since  then  I  have  seen  re 
ports  of  many  speeches  of  his,  and  resolution 
and  bills  introduced  by  him  into  the  rebe 
Seriate. 


DESTRUCTION  OF  STEAMBOATS,  ETC 

EDWARD   FRAZIEK. 
For  the  Prosecution. — June  8. 

I  am  a  steamboat  man,  and  have  been 
making  St.  Louis  my  home  for  the  last  nin 
or  ten  years.  During  1864  I  knew  of  the 
operations  of  Tucker,  Minor  Majors,  Thomas 
L.  Clark,  and  Colonel  Barrett  of  Missouri 
for  burning  boats  carry  ing  Government  freight 
transports,  and  other  vessels  on  the  Missis 
eippi,  Ohio,  and  other  rivers.  These  met 
were  in  the  service  of  the  Confederate  Gov 
eminent.  I  knew  of  the  following  steamboats 
having  been  been  burned  by  the  operation,' 
of  these  parties :  the  Imperial,  Hiawatha,  the 
Kobert  Campbell,  the  Louisville,  the  Danie 
G.  Taylor,  and  others,  besides  some  in  New 
Orleans  that  I  do  not  know  the  name  of. 
The  Imperial  was  one  of  the  largest  and 
finest  transports  on  the  western  waters.  In 
the  case  of  the  burning  of  the  Robert  Camp 
bell,  which  was  destroyed  in  the  stream,  when 
under  way,  at  Milliken's  Bend,  twenty-five 
miles  above  Vicksburg,  there  was  a  consid 
erable  loss  of  life.  The  agent  who  destroyed 
this  boat  was  on  board.  These  boats  were 
all  owned  by  private  individuals. 

The  operations  of  these  men  were  to  in 
clude  Government  hospitals,  store-houses,  and 
every  thing  appertaining  to  the  army.  A 
United  States  hospital  at  Louisville  was 
burned  in  June  or  July  of  1864.  I  do  not 
know  who  burned  it,  but  a  man  named  Dil 
lingham  claimed  compensation  for  it. 

I  was  in  Richmond  from  the  20th  to  the 
25th  or  26th  of  August  last,  when  I  had  an 
interview  with  the  rebel  Secretary  of  War, 
the  Secretary  of  State,  and  Mr.  Jefferson 
Davis.  Thomas  L.  Clark,  Dillingham,  and 
myself  called  there  in  connection  with  the 
boat  burning,  and  put  in  claims  to  Mr.  James 
A.  Seddon,  the  rebel  Secretary  of  War.  Mr. 
Clark  introduced  me  to  Mr.  Seddon.  He  told 
me  that  he  had  thrown  up  that  business ;  that 
it  was  now  in  the  hands  of  Mr.  Benjamin. 
We  went  to  him,  and  Mr.  Benjamin  looked 
at  the  papers  we  brought  him,  and  asked  me 
if  I  knew  any  thing  about  them.  I  told  him 
that  I  did,  and  that  I  believed  they  were  all 
right.  He  asked  me  if  I  was  from  St.  Louis; 
I  told  him  I  was.  He  then  asked  Mr.  Clark 
if  he  knew  me  to  be  all  right,  and  he  said  I 
had  been  represented  to  him  by  Mr.  Majors 


as  being  all  right.  Mr.  Benjamin  told  us  all 
three  to  call  next  day.  We  did  so,  when  he 
said  he  had  shown  those  papers  to  Jefferson 
Davis,  and  he  (Benjamin)  wanted  to  know 
if  we  would  not  take  $30,000  and  sign  re 
ceipts  in  full.  We  told  him  we  would  not. 
Mr  Benjamin  then  said  that  if  Dillingham 
was  to  claim  this  in  Louisville,  lie  wanted  a 
statement  of  it.  We  went  back  to  the  hotel, 
and  I  wrote  the  statement  myself.  It  read 
that  Mr.  Dillingham  had  been* lured  by  Gen 
eral  Polk,  and  that  he  had  been  sent  to 
Louisville  expressly  to  do  that  work — namely, 
burn  the  hospital.  It  was  then  talekd  over, 
with  Mr.  Benjamin,  and  w.e  made  a  settle 
ment  with  him  for  $50,000;  $35,000  down  in 
gold,  and  $15,000  on  deposit,  to  be  paid  in 
four  months,  provided  the  claims  proved  cor 
rect.  The  money  was  paid  by  a  draft  on 
Columbia  for  $34,800  in  gold,  and  $200  in 
gold  we  got  in  Richmond.  We  received  the 
gold  on  the  draft  at  Columbia. 

While  at  Richmond  Mr.  Benjamin  told  me 
that  Mr.  Davis  wanted  to  see  me.  I  went  in 
with  Benjamin  to  see  Mr.  Davis,  and  we  sat 
and  talked.  The  conversation  first  was  about 
what  was  called  the  Long  Bridge,  between 
Nashville  and  Chattanooga.  Mr.  Davis 
wanted  to  know  what  I  thought  about  de 
stroying  it.  He  said  they  had  been  think 
ing  about  it,  and  of  sending  some  one  to  have 
it  done.  I  told  him  I  knew  of  the  bridge, 
though  I  did  not,  for  I  had  never  been  there; 
but  I  did  not  know  what  to  think  about  de 
stroying 'it.  He  said  I  had  better  study  it 
over.  Finally,  I  told  him  I  thought  it  could 
be  done.  Mr.  Benjamin,  I  believe  it  was, 
,vho  first  remarked  that  he  would  give 
$400,000  if  that  bridge  was  destroyed,  and 
isked  me  if  I  would  take  charge  of  it.  I 
:old  him  I  would  not,  unless  the  passes  were 
:aken  away  from  those  men  that  were  now 
lown  there;  and  Mr.  Davis  said  it  should  be 
lone.  The  conversation  then  turned  on  the 
jurning  of  the  steamboats.  I  told  Mr.  Davis 
hat  I  did  not  think  it  was  any  use  burning 
steamboats,  and  he  said  no,  he  was  going  to 
lave  that  stopped.  The  next  day  I  saw  an 
>rder  in  the  paper  taking  away  passes  issued 
>n  or  before  the  23d  of  August.  These  passes 
were  permits  to  do  this  kind  of  work. 

I  asked  Mr.  Davis  if  it  would  make  any  dif- 
erence  where  the  work  of  destroying  bridges 
vas  done.  He  said  it  did  not;  it  might  be 
lone  in  Illinois,  or  any  place;  that  we  might 
lestroy  railroad  bridges,  commissary  and 
[iiarter-m aster  stores — any  thing  appertain- 
ng  to  the  arm)-,  but  as  near  Sherman's  base 
possible;  that  Sherman  was  the  man  who 
yas  doing  more  harm  than  any  body  else  at 
hat  time. 

I  presume  Mr.  Davis  knew  that  the  pay  I 
eceived  was  for  the  work  I  had  done;  he 
inew  I  had  received  money  there. 

The  papers  we  presented  were  statements 
vritten  out  by  Mr.  Clark,  of  the  services 
endered  and  the  amount  claimed. 


50 


THE  CONSPIRACY   TRIAL. 


Mr.  Davis  seemed  fully  aware  of  what  we!  Hailing  a  man  from  the  barge,  I  put  the  ma- 
had  done,  and  he  did  not  condemn  it.  Mr.  i  chine  in  motion,  and  gave  it  in  his  charge. 
Majors  and  Barrett  belonged  to  an  organiza-  He  carried  it  aboard.  The  magazine  con- 
tion  known  as  the  0.  A.  K.,  or  Order  of 
American  Knights. 

Q.  Will  you  state,, if  you  think  proper  to 


do  so,  whether  you  are  also  a  member  of 
that  order?  You  are  not  bound  to  state  it, 
if  the  answer  wil)  criminate  you  in  any  way. 

[The  witness  declined  to  answer.] 

I  understood  that  Colonel  Barrett  held  the 
position  of  Adjutant-General  of  this  organi 
zation,  of  the  Sons  of  Liberty,  for  the  State 
of  Illinois.  I  do  not  know  that  Majors  and 
Barrett  were  in  Chicago  in  July  last,  but  Mr. 
Majors  left  St.  Louis,  either  in  June  or  July, 
to  go  to  Canada,  and  I  presume  went  there 
by  way  of  Chicago. 


THE  CITY  POINT  EXPLOSION. 

BRIG.-GEN.  E.  D.  TOWNSEND,  U.  S.  A. 

For  the  Prosecution. — June  12. 

I  was  well  acquainted  with  G.  J.  Rains, 
who  resigned  as  Lieutenant-Colonel  of  the 
Fifth  Regiment  of  United  States  Infantry  in 
1861.  He  has,  I  understand,  since  then  been 

Brigadier-General  in  the  rebel  service.  I 
am  acquainted  with  his  handwriting,  and,  to 
the  best  of  my  knowledge  and  belief,  the  sig 
nature  to  the  indorsement  now  shown  to  me 
is  in  his  handwriting. 

[The  following  letter,  with  the  indorsement,  was  then 
read  and  put  in  evidence:] 

RICHMOND,  December  10,  1864. 
Copt.  Z.  Me  Daniel,  Com  ding  Torpedo  Co.: 

CAPTAIN:  I  have  the  honor  to  report  that, 
in  obedience  to  your  order,  and  with  the 
means  and  equipment  furnished  me  by  you, 
I  left  this  city  26th  July  last,  for  the  Tine  of 
the  James  River,  to  operate  with  the  ''Hozo- 
logical  Torpedo"  against  the  enemy's  vessels 
navigating  that  river.  I  had  with  me  Mr.  R. 
K.  Dillard,  who  was  well  acquainted  with  the 
localities,  and  whose  services  I  engaged  for 
the  expedition.  On  arriving  in  Isle  of  Wight 
County  on  the  2d  of  August,  we  learned  of 
immense  supplies  of  stores  being  landed  at 
City  Point;  and,  for  the  purpose,  by  stratagem, 
of  introducing  our  machine  upon  the  vessels 
there  discharging  stores,  started  for  that  point. 
We  reached  there  before  daybreak,  on  the 
9th  of  August  last,  with  a  small  amount  of 
provisions,  having  traveled  mostly  by  night, 
and  crawled  upon  our  knees  to  pass  the  east 
picket  line.  Requesting  my  companion  to  re 
main  behind  about  half  a  mile,  I  approached 
cautiously  the  wharf,  with  my  machine  and 
powder  covered  by  a  small  box.  Finding  the 
Captain  had  come  ashore  from  a  barge  then 
at  the  wharf,  I  seized  the  occasion  to  hurry 
forward  with  my  box.  Being  halted  by  one 
of  the  wharf  sentinels,  I  succeeded  in  passing 
him  by  representing  that  the  Captain  had 


tained  about  twelve  pounds  of  powder.  Re 
joining  my  companion,  we  retired  to  a  safe 
distance  to  witness  the  effect  of  our  effort,  In 
about  an  hour  the  explosion  occurred.  Its 
effect  was  communicated  to  another  barge 
beyond  the  one  operated  upon,  arid  also  to  a 
large  wharf  building  coritainining  their  stores, 
(enemy's,)  which  was  totally  destroyed.  The 
scene  was  terrific,  and  the  effect  deafened  my 
companion  to  an  extent  from  which  he  has 
not  recovered.  My  own  person  was  severely 
shocked,  but  I  am  thankful  to  Providence 
that  we  have  both  escaped  without  lasting 
injury.  We  obtained  and  refer  you  to  the 
inclosed  slips  from  the  enemy's  newspapers, 
which  afford  their  testimony  of  the  terrible 
effects  of  this  blow.  The  enemy  estimate  the 
loss  of  life  at  fifty-eight  killed  and  one  hun 
dred  and  twenty-six  wounded,  but  we  have 
reason  to  believe  it  greatly  exceeded  that. 

The  pecuniary  damage  we  heard  estimated 
at  four  millions  of  dollars;  but  of  course  we 
can  give  you  no  account  of  the  extent  of  it 
exactly.  I  may  be  permitted,  Captain,  here 
to  remark  that,  in  the  enemy's  statement,  a 
party  of  ladies,  it  seems,  were  killed  by  this 
explosion.  It  is  saddening  to  me  to  realize 
the  fact  that  the  terrible  effects  of  war  induce 
such  consequences;  but  when  I  remember  the 
ordeal  to  which  our  own  women  have  been 
submitted,  and  the  barbarities  of  the  enemy's 
crusade  against  us  and  them,  my  feelings  are 
relieved  by  the  reflection  that  while  this 
catastrophe  was  not  intended  by  us,  it  amounts 
only,  in  the  providence  of  God,  to  just  re 
taliation. 

This  being  accomplished,  we  returned  to 
the  objects  of  our  original  expedition.  We 
learned  that  a  vessel  (the  Jane  Durfield)  was 
in  Warwick  River,  and,  with  the  assistance 
of  Acting-Master  W.  H.  Hinds,  of  the  Con 
federate  States  navy,  joined  a  volunteer  party 
to  capture  her.  She  was  boarded  on  the  17th 
September  last,  and  taken  without  resistance, 
We  did  not  destroy  her,  because  of  the  effect 
it  might  have  had  on  the  neighboring  citizens 
and  our  own  further  operations.  At  the  in 
stance  of  the  Captain  she  was  bonded,  he 
offering  as  a  hostage,  in  the  nature  of  security 
to  the  bond,  one  of  his  crew,  who  in  now 
held  as  a  prisoner  of  war  on  this  condition  in 
this  city. 

In  the  meanwhile  we  operated  on  the  James, 
as  the  weather  and  moon  co-operated,  but 
without  other  success  than  the  fear  with  which 
the  enemy  advanced,  and  the  consequent  re 
tarding  of  his  movements  on  the  river.  We 
neared  success  on  several  occasions.  Finding 
our  plan  of  operations  discovered  by  the 
enemy,  and  our  persons  made  known  and 
mrsued  by  troops  landed  from  their  boats  at 
>mithfield,  we  deemed  it  best  to  suspend  oper 
ations  in  that  quarter  and  return  to  report  to 
ordered  me  to  convey  the  box  on  board,  you,  officially,  our  labors.  Your  orders  were 


MILLION   DOLLARS   FOR   ASSASSINATION. 


51 


to  remain  in  the  enemy's  lines  as  long  as  we 
could  do  so;  but  I  trust    this   conduct  will 
meet  your  approval.    The  material  unused  has 
been  safely  concealed.     I  have  thus,  Captain, 
presented  you  in  detail  the   operations  con 
ducted  under  your  orders  and  the  auspices  of 
your  company,  and  await  further  orders. 
Very  respectfully,  your  obedient  servant, 
JOHN  MAXWELL. 

INDORSEMENTS. 

December  17, 1864. 

Report  of  J.  Maxwell,  of  Captain  Z.  Mc- 
Daniel's  Company,  Secret  Service,  of  his  oper 
ations  on  James  River. 

Respectfully  forwarded  to  Brigadier-General 
Rains.  Z.  McDANIEL, 

Captain  Company  A,  Secret  Service. 

FOB.  Bu.,  RICHMOND,  VA.,     1 
December  17,  1864.  j 

For  Hon.  /Secretary  of  War : 
Present. 

Respectfully  forwarded,  with  remark  that 
John  Maxwell  and  R.  K.  Dillard  were  sent 
by  Captain  McDaniel  into  the  enemy's  lines 
by  my  authority,  for  some  such  purpose,  and 
the  supposition  was  strong,  as  soon  as  the 
tremendous  explosion  occurred  at  City  Point, 
on  the  9th  August  last,  that  it  was  done 
through  their  agency,  but,  of  course,  no  re 
port  could  be  made  until  the  parties  returned, 
which  they  did  on  Wednesday  last,  and  gave 
an  account  of  their  proceedings. 

This  succinct  narrative  is  but  an  epitome 
of  their  operations,  which  necessarily  implies 
secrecy,  for  the  advantage  of  this  kind  of 
eervice,  as  well  as  their  own  preservation. 

John  Maxwell  is  a  bold  operator  and  well 
calculated  for  such  exploits,  and  also  his  co 
adjutor,  R.  K.  Dillard. 

G.  J.  RAINS, 
Brigadier  General,  Sup't. 


the  sum  of  fifty  thousand  dollars  in  advance, 
which  is  supposed  to  be  necessary  to  reach 
and  slaughter  the  three  villains. 

"I  will  give,  myself,  one  thousand  dollars 
toward  this  patriotic  purpose.  Every  one 
wishing  to  contribute  will  address  Box  X, 
Cahawba,  Alabama. 

''December  1,  1864." 

That  advertisement  was  published  in  the 
Selma  Dispatch,  and,  as  far  as  I  remember, 
at  the  date  named.  It  was  inserted  four  or 
five  times;  the  manuscript  passed  through 
my  hands,  and  was  in  the  handwriting  of 
Mr.  G.  W.  Gayle,  of  Cahawba,  Ala.  His 
signature  was  on  the  manuscript,  to  indicate 
that  he  was  the  author,  and  was  responsible 
for  it.  I  am  familiar  with  his  handwriting. 

The  Selma  Dispatch  had  a  circulation  of 
about  eight  hundred  copies,  and  exchanged 
with  most,  if  not  all,  the  Richmond  papers. 

Mr.  Gayle  is  a  lawyer  of  considerable 
reputation,  and  is  distinguished,  even  in 
Alabama,  for  his  extreme  views  on  the  sub 
ject  of  slavery  and  the  rebellion,  and  as  an 
ardent  supporter  of  the  Confederacy. 

W.  D.  GRAVES. 
For  the  Prosecution. — June  27. 

I  reside  in  Selma.  Alabama,  and  am  a 
printer.  I  was  engaged  in  the  office  of  the 
Selma  Dispatch  in  December  last,  and 
remember  seeing  an  advertisement  published 
in  that  paper,  signed  "X,"  bearing  date 
December  1st,  1864,  headed,  "One  Million 
of  Dollars  Wanted,  to  have  Peace  by  the 
First  of  March."  I  saw  the  manuscript 
from  which  the  advertisement  just  testified 
to  was  set  up.  It  was  in  the  handwriting 
of  Colonel  G.  W.  Gayle;  I  am  well  acquainted 
with  it,  having  seen  it  frequently  in  articles 
we  had  published  before. 


MILLION  DOLLARS  FOR  ASSASSINA 
TION. 

JOHN  CANTLIN. 
For  the  Prosecution. — June  27. 

I  reside  at  Selma,  Alabama,  and  am  a 
printer.  I  was  foreman  of  the  Selma  Dis 
patch  in  December  last. 

JThe  following  Advertisement,  purporting  to  have  been 
clipped  from  the  Selma  Dispatch,  was  then  read  by  the 
Judge  Advocate,  and  offered  in  evidence:] 

"ONE  MILLION  DOLLARS  WANTED  TO  HAVE 
PEACE  BY  THE  IST  OF  MARCH. — If  the  citizens 
of  the  Southern  Confederacy  will  furnish  me 
with  the  cash,  or  good  securities  for  the  sum 
of  one  million  dollars,  I  will  cause  the  lives 
of  Abraham  Lincoln,  Wm.  H.  Seward,  and 
Andrew  Johnson  to  be  taken  by  the  1st  of 
March  next.  This  will  give  us  peace,  and 
satisfy  the  world  that  cruel  tyrants  can  not 
live  in  a  'land  of  liberty.'  If  this  is  not 
accomplished,  nothing  will  be  claimed  beyond 


PROPOSALS  TO  RID  THE  COUNTRY 

"OF  SOME  OF  HER  DEADLIEST 

ENEMIES." 

COLONEL  R.  B.  TREAT 
For  the  Prosecution. — May  22. 

I  am  Chief  Commissary  of  the  Army  of 
the  Ohio,  and  have  recently  been  on  duty  in 
the  State  of  North  Carolina.  The  army 
with  which  I  have  been  connected  captured 
a  variety  of  boxes  said  to  contain  archives 
of  the  so-called  Confederate  States.  They 
were  delivered  up  by  General  Joseph  A. 
Johnston,  at  Charlotte,  N.  C. 

A  letter  was  sent  to  General  Schofield  at 
Raleigh  from  General  Johnston  at  Charlotte, 
stating  that  he  had  in  his  possesion  there 
the  records  and  archives  of  the  Confederacy, 
which  he  was  ready  to  deliver  on  General 
Schofield's  sending  an  officer  to  receive 
them.  The  day  following,  an  officer  on  the 


52 


THE    CONSPIRACY    TRIAL. 


General's  staff  was  sent  to  Charlotte,  who 
received  them  and  brought  them  to  Raleigh. 
From  that  point  I  brought  them  here,  and 
delivered  them  at  the  War  Department  to 
Major  Eckert,  Acting  Assistant  Secretary  of 
War. 

MAJOR  T.  T.  ECKERT. 
For  the  Prosecution. — May  22. 

Yesterday  morning  I  received  at  the  War 
Department  certain  boxes  from  Colonel 
Treat,  purporting  to  contain  the  archives  or 
records  of  the  War  Department  of  the  so- 
called  Confederate  States.  Some  of  these 
boxes,  by  my  direction,  have  been  opened 
by  Mr.  Frederick  II.  Hall,  and  their  contents 
have  undergone  an  examination  by  him. 

FREDERICK  H.  HALL. 
For  the  Prosecution. — May  22. 

I  have  opened  certain  of  the  boxes  deliv 
ered  to  Major  Eckert,  containing  the  archives 
of  the  so-called  Confederate  States.  From 
the  box  marked  "Adjutant  and  Inspector- 
General's  Office;  Letters  received  July  to 
December,  1864,"  I  took  this  letter. 

[The  following  letter  was  then  read  and  offered  in  evi 
dence:] 

MONTGOMERY,  WHITE  SULPHUR  SPRINGS,  YA. 
To  his  Excellency  the  President  of  the  Confed 
erate  States  of  America : 
DEAR  SIR:  I  have  been  thinking  some 
time  that  I  would  make  this  communication 
to  you,  but  have  been  deterred  from  doing 
so  on  account  of  ill  health.  I  now  offer  you 
my  services,  and  if  you  will  favor  me  in  my 
designs,  I  will  proceed,  as  soon  as  my  health 
will  permit,  to  rid  my  country  of  some  of  her 
deadliest  enemies,  by  striking  at  the  very 
heart's  blood  of  those  who  seek  to  enchain 
her  in  slavery.  I  consider  nothing  dishon 
orable  having  such  a  tendency.  All  1  ask 
of  you  is  to  favor  me  by  granting  me  the 
necessary  papers,  etc.,  to  travel  on  while 
within  the  jurisdiction  of  the  Confederate 
Government.  I  am  perfectly  familiar  with 
the  North,  and  feel  confident  that  I  can 
execute  any  thing  I  undertake.  I  am  just 
returned  now  from  within  their  lines.  I  am 
a  lieutenant  in  General  Duke's  command, 
and  I  was  on  the  raid  last  June  in  Kentucky 
under  General  John  H.  Morgan.  I  and  all 
of  my  command,  excepting  about  three  or 
four,  and  two  commissioned  officers,  were 
taken  prisoners;  but  finding  a  good  oppor 
tunity,  while  being  taken  to  prison,  I  made 
my  escape  from  them.  Dressing  myself  in 
the  garb  of  a  citizen,  I  attempted  to  pass 
out  through  the  mountain;  but  finding  that 
impossible,  narrowly  escaping  two  or  three 
times  from  being  retaken,  I  shaped  my 
course  north  and  went  through  to  the  Canadas, 
from  whence,  by  the  assistance  of  Colonel 
J.  P.  Holcombe,  I  succeeded  in  making  my 
way  around  and  through  the  blockade;  but 


j  having  taken  the  yellow  fever,  etc.,  at  Ber- 
|  muda,  I  have  been  rendered  unfit  for  service 
j  since  my  arrival. 

I  was  reared  up  in  the  State  of  Alabama, 
and  educated  at  its  university.  Both  the 
Secretary  of  War  and  his  assistant,  Judge 
Campbell,  are  personally  acquainted  with 
my  father,  William  J.  Alston,  of  the  Fifth 
Congressional  District  of  Alabama,  having 
served  in  the  time  of  the  old  Congress,  in  the 
years  1849-50-51. 

If  I  do  any  thing  for  you,  I  shall  expect 
your  full  confidence  in  return.  If  you  do 
this,  I  can  render  you  and  my  country  very 
important  service.  Let  me  hear  from  you  soon. 
I  am  anxious  to  be  doing  something,  and 
having  no  command  at  present,  all,  or  nearly 
all,  being  in  garrison,  I  desire  that  you  favor 
me  in  this  a  short  time.  I  would  like  to 
have  a  personal  interview  with  you,  in  order 
to  perfect  the  arrangements  before  starting. 
I  am,  very  respectfully, 
Your  obedient  servant, 

LIEUT.  W.  ALSTON. 


INDORSEMENTS. 

A,  1,390.  Lieutenant  W.  Alston,  Mont 
gomery,  Sulphur  Springs,  Va.  [No  date.] 

Is  lieutenant  in  General  Duke's  command. 
Accompanied  raid  into  Kentucky  and  was  cap 
tured,  but  escaped  into  Canada,  from  whence 
he  found  his  way  back.  Been  in  bad  health. 
Now  offers  his  services  to  rid  the  country 
of  some  of  its  deadliest  enemies.  Asks  for 
papers  to  permit  him  to  travel  within  the 
jurisdiction  of  this  Government.  Would  like 
to  have  an  interview  and  explain. 

Respectfully    referred,  by  direction  of  the 
President,  to  the  Honorable  Secretary  of  War. 
BURTON  W.  HARRISON, 

Private  Secretary. 

Received  November  29,  1864. 
Recorded  book  A.  A.  G.  0.,  December  15, 
1864. 

A.  G.  for  attention. 
By  order.     J.  A.  CAMPBELL,  A.  S.  W. 

LEWIS  W.  CHAMBERLAYNE. 

For   the   Prosecution. — May   26. 

1  reside  at  Richmond,  Virginia,  and  have 
been  on  duty  as  a  clerk  in  the  War  Department 
of  the  Confederate  States.  While  so  acting, 
I  became  acquainted  with  the  handwriting 
of  John  A.  Campbell,  rebel  Assistant  Secre 
tary  of  War,  and  late  Judge  of  the  Supreme 
Court  of  the  United  States;  also,  with  that 
of  Burton  W.  Harrison,  the  Private  Secretary 
of  Jefferson  Davis.  I  have  examined  the 
letter  of  Lieutenant  W.  Alston,  and  the 
indorsements  thereon,  and  the  indorsement, 
"  Respectfully  referred,  by  direction  of  the 
President,  to  the  Honorable  Secretary  of 
War,"  is,  to  the  best  of  my  knowledge  and 
belief,  in  the  handwriting  of  Burton  W 
Harrison,  who  was  recognized  in  the  Wai 


COMMISSIONS  FOll  RAIDERS. 


53 


Office  at  Richmond  as  the  private  secretary 
of  Jefferson  Davis. 

The  other  indorsement, 

"A.  G.  for  attention. 
"By  order. 

[Signed]       "  J.  A.  CAMPBELL,  A.  S.  W." 
is  in  the  handwriting  of  Judge  Campbell. 


COMMISSIONS  FOR  RAIDERS. 


GEORGE  F.  EDMUNDS. 
For  the  Prosecution. — May  27. 

I  reside  at  Burlington,  Vt.,  and  am  coun 
selor  at  law.  At  the  recent  trial  of  the  St. 
Albans  raiders  that  took  place  in  Canada, 
I  appeared  as  counsel  in  behalf  of  the  Gov 
ernment  of  the  United  States. 

In  the  performance  of  my  duty  there,  I 
became  acquainted  with  Jacob  Thompson, 
William  C.  Cleary,  Clement  C.  Clay,  George 
N.  Sanders,  and  others  of  that  digue.  They 
assumed  to  be  officers  of  the  Confederate 
Government  in  defending  these  raiders.  I 
have  no  personal  knowledge  of  their  real 
authority,  but  they  were  notoriously  under 
stood  there  to  be  the  representatives  of  the 
rebel  cause.  Mr.  Cleary  was  examined  as  a 
witness  on  the  part  of  the  defendants;  he 
represented  that  the  persons  engaged  in  this 
raid  were  acting  under  the  authority  of  the 
Confederate  Government.  All  those  who 
testified  stood  upon  that  defense. 

The  volume  entitled  "The  St.  Albans 
Raiders,  or  Investigation  into  the  Charges 
against  Lieutenant  Bennett  II.  Young,  and 
Command  for  their  acts  at  St.  Albans.  Vt., 
on  the  19th  of  October,  1864,  compiled  by 
L.  N.  Benjamin,  B.  C.  L.,  printed  at  Montreal 
by  John  Lovell/'  contains,  on  page  216,  a  copy 
of  a  paper  marked  R,  the  original  of  which 
was  given  in  evidence  at  the  trial,  on  the  part 
of  the  defendant,  Mr.  Young,  and  others.  I 
examined  the  original  very  critically,  and  I 
am  able  to  swear  that  this  is  substantially  a 
copy,  and  I  have  no  doubt  it  is  a  literal  one. 

[The  following  was  then  read  and  put  in  evidence :] 

PAPER    R. 
CONFEDERATE  STATES  OF  AMERICA 


DERATE  STATES  OF  AMERICA,") 

WAR  DEPARTMENT, 
ichmond,  Va.,  June  16, 1864. ) 


Rid 
To  Lieutenant  Bennett  H.   Young  : 

LIEUTENANT:  You  have  been  appointed 
temporarily  first  lieutenant  in  the  provisional 
army  for  special  service. 

You  will  proceed,  without  delay,  to  the 
British  Provinces,  where  you  will  report  to 
Messrs.  Thompson  and  Clay  for  instructions. 

You  will,  under  their  direction,  collect 
together  such  Confederate  soldiers  who  have 
escaped  from  the  enemy,  not  exceeding  twenty 
in  number,  as  you  may  deem  suitable  for  the 
purpose,  and  will  execute  such  enterprises  as 
may  be  intrusted  to  you.  You  will  take  care 
to  commit  no  violation  of  the  local  law,  and 


to  obey  implicitly  their  instructions.  You 
and  your  men  will  receive  from  these  gentle 
men  transportation,  and  the  customary  rations 
and  clothing,  or  the  commutation  therefor. 

JAMES  A.  SEDDON, 
VA.,  June  16.  Secretary  of  War. 

Bennett  H.  Young,  who  was  on  trial,  pro 
duced  that  document  as  his  authority  for  the 
acts  he  did  at  St.  Albans. 

HENRY  G.  EDSON. 
For  the  Prosecution. — June  10. 

I  reside  at  St.  Albans,  Vt,,  and  am  an  at 
torney  and  counselor  at  law.  I  was  in 
Canada  during  the  judicial  investigations  in 
connection  with  the  St.  Albans  raid,  acting  as 
counsel  in  behalf  of  the  bank  and  the  United 
States.  I  saw  there  George  N.  Sanders,  Ja 
cob  Thompson,  Clement  C.  Clay,  and  others 
of  that  circle  of  rebels. 

I  heard  a  conversation  between  George  N. 
Sanders  and  other  parties  at  St.  John's,  in  re- 
ard  to  movements  in  the  States  contemplated 
y  the  rebel  authorities.     I  made  a  memo 
randum  in  my  diary  of  this  conversation  at 
the  time. 

In  speaking  of  the  so-called  St.  Albans  raid, 
George  N.  Sanders  said  he  was  ignorant  of  it 
before  it  occurred,  but  was  satisfied  with  it. 
He  said  that  it  was  not  the  last  that  would 
occur;  but  it  would  be  followed  up  by  the 
depleting  of  many  other  banks,  and  the  burn 
ing  of  many  other  towns  on  the  frontier,  and 

that    many    Yankee    sons    of (using   a 

course,  vulgar  expression)  would  be  killed. 
He  said  that  they  had  their  plans  perfectly 
organized,  and  men  ready  to  sack  and  burn 
Buffalo,  Detroit,  New  York,  and  other  places, 
and  had  deferred  them  for  a  time,  but  would 
soon  see  the  plans  wholly  executed;  and  any 
preparation  that  could  be  made  by  the  Gov 
ernment  to  prevent  them  would  not,  though 
t  might  defer  them  for  a  time.  He  made 
other  statements  in  connection  with  the  case; 
that  he  had  hired  a  house  in  St.  John's, 
which  he  intended  to  furnish  himself,  to  ac 
commodate  his  friends  and  attorneys;  that 

had  employed  twenty  or  thirty  counsel  in 
Canada. 

Sanders  claimed  to  be  acting  as  an  agent 
of  the  so-called  Confederate  Government. 
Se  said  that  he  had  retained  the  counsel  who 
md  acted  in  the  case,  and  that  Mr.  Clement 
3.  Clav,  from  the  Clifton  House,  was  also  to 
aid. 


PLOT  TO  BURN  NEW  YORK  CITY. 

COLONEL  MARTIN  BURKE. 

For  the  Prosecution. — May  29. 

I  knew  Robert  C.  Kennedy,  who  was 
langed  in  New  York  in  March  last.  I  had 
:harge  of  him  and  had  him  hung.  I  hold 
n  my  hand  a  confession  made  by  him  in 


54 


THE    CONSPIRACY    TRIAL. 


my  presence,  a   day   or  so  before    his  execu 
tion. 

[The  following  was  then  read  and  put  in  evidence :] 


CONFESSION   OF  ROBERT  C.    KENNEDY. 

After  my  escape  from  Johnson's  Island,  I 
went  to  Canada,  where  I  met  a  number  of 
Confederates.  They  asked  me  if  I  was  will 
ing  to  go  on  an  expedition.  I  replied,  "Yes, 
if  it  is  in  the  service  of  rny  country."  They 
said,  "It  is  all  right,"  but  gave  no  intima 
tion  of  its  nature,  nor  did  I  ask  for  any.  I 
was  then  sent  to  New  York,  where  I  staid 
some  time.  There  were  eight  men  in  our 
party,  of  whom  two  fled  to  Canada.  After 
we  had  been  in  New  York  three  weeks,  we 
were  told  that  the  object  of  the  expedition 
was  to  retaliate  on  the  North  for  the  atroc 
ities  in  the  Shenandoah  Valley.  It  was  de 
signed  to  set  fire  to  the  city  on  the  night  of 
the  Presidential  election;  but  the  phospho 
rus  was  not  ready,  and  it  was  put  off  until 
the  25th  of  November.  I  was  stopping  at 
the  Belmont  House,  but  moved  into  Prince 
Street.  I  set  fire  to  four  places — in  Barnum's 
Museum,  Lovejoy's  Hotel,  Tammany  Hotel, 
and  the  New  England  House.  The  others 
only  started  fires  in  the  house  where  each 
was  lodging,  and  then  ran  off.  Had  they  all 
done  as  I  did,  we  would  have  had  thirty-two 
fires,  and  played  a  huge  joke  on  the  fire  de 
partment.  I  know  that  I  am  to  be  hung  for 
setting  fire  to  Barnum's  Museum,  but  that 
was  only  a  joke.  I  had  no  idea  of  doing  it. 
I  had  been  drinking,  and  went  in  there  with 
a  friend,  and,  just  to  scare  the  people,  I 
emptied  a  bottle  of  phosphorus  on  the  floor. 
We  knew  it  would  n't  set  fire  to  the  wood, 
for  we  had  tried  it  before,  and  at  one  time 
concluded  to  give  the  whole  thing  up. 

There  was  no  fiendishness  about  it.  After 
setting  fire  to  my  four  places,  I  walked  the 
streets  all  night,  and  went  to  the  Exchange 
Hotel  early  in  the  morning.  We  all  met 
there  that  morning  and  the  next  night.  My 
friend  and  I  had  rooms  there,  but  we  sat  in 
the  office  nearly  all  the  time,  reading  the 
papers,  while  we  were  watched  by  the  de 
tectives,  of  whom  the  hotel  was  full.  I  ex 
pected  to  die  then,  and  if  I  had,  it  would 
have  been  all  right;  but  now  it  seems  rather 
hard.  I  escaped  to  Canada,  and  was  glad 
enough  when  I  crossed  the  bridge  in  safety. 

I  desired,  however,  to  return  to  my  com 
mand,  and  started  with  my  friend  for  the 
Confederacy,  via  Detroit.  Just  before  enter 
ing  the  city,  he  received  an  intimation  that 
the  detectives  were  on  the  lookout  for  us, 
and,  giving  me  a  signal,  he  jumped  from  the 
cars.  I  did  n't  notice  the  signal,  but  kept  on, 
and  was  arrested  in  the  depot. 

I  wish  to  say  that  killing  women  and 
children  was  the  last  thing  thought  of.  We 
wanted  to  let  the  people  of  the  North  under 
stand  that  there  were  two  sides  to  this  war, 
and  that  they  can't  be  rolling  in  wealth  and 


comfort,  while  we  at  the  South  are  bearing 
all  the  hardships  and  privations. 

In  retaliation  for  Sheridan's  atrocities  in 
the  Shenandoah  Valley,  we  desired  to  destroy 
property,  not  the  lives  of  women  and  chil 
dren,  although  that  would,  of  course,  have 
followed  in  its  train. 

Done  in  the  presence  of 

LIEUT-COL.  MARTIN  BURKE 
And  J.  HOWARD,  JR. 

March  24,  10:30  P.  M. 


INTRODUCTION  OF  PESTILENCE. 


GODFREY  JOSEPH  HYAMS. 
For  the  Prosecution. — May  29. 

I  am  a  native  of  London,  England,  but 
have  lived  South  nine  or  ten  years.  During 
the  past  year,  I  have  resided  in  Toronto, 
Canada.  About  the  middle  of  December, 
1863,  I  made  the  acquaintance  of  Dr.  Black 
burn  ;  I  was  introduced  to  him  by  the  Rev. 
Stewart  Robinson,  at  the  Queen's  Hotel,  in 
Toronto.  I  knew  him  by  sight  previously, 
but  before  that  had  had  no  conversation 
with  him.  I  knew  that  he  was  a  Confeder 
ate,  and  was  working  for  the  rebellion.  Dr. 
Blackburn  was  then  about  to  take  South 
some  men  who  had  escaped  from  the  Fed 
eral  service,  and  I  asked  to  go  with  him. 

He  asked  me  if  I  wanted  to  go  South  and 
serve  the  Confederacy.  I  said  I  went.  He 
then  told  me  to  come  up  stairs;  lie  wanted 
to  speak  to  me.  lie  took  me  up  stairs  to 
a  private  room,  and  pledged  his  word,  as  a 
Freemason,  and  offered  his  hand  in  friend 
ship,  that  he  would  never  deceive  me;  he  said 
he  wanted  to  confide  to  me  an  expedition. 
I  told  him  I  would  not  care  if  I  did.  He 
said  1  would  make  an  independent  fortune 
by  it,  at  least  $100,000,  and  get  more  honor 
and  glory  to  my  name  than  General  Lee, 
and  be  of  more  assistance  to  the  Confederate 
Government,  than  if  I  was  to  take  one  hun 
dred  thousand  soldiers  to  reinforce  General 
Lee.  I  pledged  my  word  that  I  would  go, 
if  I  could  do  any  good  He  then  told  me 
he  wanted  me  to  take  a  certain  quantity  of 
clothing,  consisting  of  shirts,  coats,  and  un 
derclothing  into  the  States,  and  dispose  of 
them  by  auction.  I  was  to  take  them  to 
Washington  City,  to  Norfolk,  and  as  far 
South  as  I  could  possibly  go,  where  the  Fed 
eral  Government  held  possession  and  had  the 
most  troops,  and  to  sell  them  on  a  hot  day 
or  of  a  night;  that,  it  did  not  matter  what 
money  I  got  for  the  clothes;!  had  just  to 
dispose  of  them  in  the  best  market,  where 
there  were  most  troops,  and  where  they 
would  be  most  effective,  and  then  come 
away. 

He  told  me  I  should  have  $100,000  for 
my  services;  $60,000  of  it  directly  after  I 
returned  to  Toronto;  but  he  said  that  would 


INTRODUCTION    OF   PESTILENCE. 


55 


not  be  a  circumstance  to  what  I  should  get.  \  to    smuggle    the   trunks   into    Boston.     The 
He  said  I  might  make  ten  times  $100,000.        next  morning  I  went  down  with  Mr.  Hill  to 


I  was  to  stay  in  Toronto,  and  go  on  with 
my  legitimate  business,  until  I  heard  from 
him.  He  told  rue  to  keep  quiet,  and  if  I 


the  vessels. 

Mr.  Hill  had  a  private  conversation  with 
Captain    McGregor,  the  captain  of  the  first 


moved  anywhere,  I  was  to  inform  Dr.  Stuart  vessel  to  whom  we  applied,  and  he  refused 
Robinson  where  I  went  to,  and  he  would ,  to  take  the  goods.  We  then  went  to  see 
telegraph  for  me,  or  write  to  me  through  j  Captain  John  O'Brien  of  the  bark  Halifax. 


him.    Some  time  in  the  month  of  May,  1864,  j  Hill  told  him  that  I  had  some  presents  i 
I  went  to  my  work,  and  worked  on  until  th     my  trunks,  consisting  of  silks,  satin  dresse; 


,«.       T¥VIJV      W      *-»*J        »»WA*k|     C*UVI       vir\/JLiY^Vi       v^11       UUMJ      tl 

8th  day  of  June,    1864;  it  was   on  a  Satu 

day   night;    I  had    been  out    to  take   a  pa 

of  hoots  home  to  a  customer  of  mine;  an 

when  I  returned  home,  my  wife  had  a  lette 

for  me  from  Dr.  Blackburn,  which  Dr.  Stu 

art  Robinson  had    left  in    passing   there. 

read  the  letter,  and  went  out  to  see  Dr.  Rob 

inson.     I  asked  him  what  I  was  to  do  abon 

it;  he  said  he  did  not  know  any  thing  at  a 

about  it;  that  he  did  not  want  to  furnish  an 

means  to  commit   an    overt  act   against    th 

United  States  Government.      He  advised  m 

to  borrow    from    Mr.  Preston,  who  keeps 

tobacco    manufactory    in    Toronto,    enougl 

money  to  take  me  to  Montreal,  which  I  die 

I    went    down   to   Montreal,    and    there    go 

money  from  Mr.  Slaughter,  according  to  th 

directions  contained  in  the  letter.     The  lette 

instructed   me  to    proceed    from  Montreal  t( 

Halifax  to  meet  Dr.  Blackburn ;  it  was  datec 

"Havana,   May  10,  1864."     I   went  to  Hal 

ifax,  to  a  gentleman  by  the  name  of  Alexan 

der  II.    Keith,  jr.,  and    remained   under  hi 

care     until    Dr.    Blackburn    arrived    in    th 

steamer  Alphia,  on  the  12th  of  July,  1864 

When  Dr.  Blackburn  arrived,  he  sent  to  the 

Farmer's  Hotel,  where  I  was  staying,  for  me 

I  went   to    see    him,  and    he    told  me    tha 

the  goods  were  on  board  the  steamer  Alphia 

and  that  the  second   officer  on    the  steamer 

would  go  with  me  and  get  the  goods   off,  as 

they  had  been  smuggled    in  from  Bermuda 

Mr.  Hill,  the  second  officer,  told  me  to  gei 

an  express  wagon  and  take  it  down  to    Cu- 

nard's   steamboat  wharf;  I  did  so,  and  there 

got  eight  trunks  and  a  valise.     I  was  directed 

to  take  them  to  my  hotel,  and  put   them  in 

a  private  room.     I  put  them  in  Mr.  Doran's 

private  sitting-room. 

I  then  went  around  to  Dr.  Blackburn  and 
told  him  I  had  got  the  goods  off  the  steamer. 
He  told  me  that  the  five  trunks  tied  up  with 
ropes  were  the  ones  for  me  to  take,  and  asked 
me  if  I  would  take  the  valise  into  the  States, 
and  send  it  by  express,  with  an  accompany 
ing  letter,  as  a  donation  to  President  Lin 
coln.  I  objected  to  taking  it,  and  refused 
to  do  it.  I  then  took  three  of  the  trunks 
and  the  valise  around  to  his  hotel.  He  was 
then  staying  at  the  Halifax  Hotel.  The 
trunks  had  Spanish  marks  upon  them,  and 
he  told  me  to  scrape  them  off;  and  that  Mr. 
Hill  would  go  with  me  the  next  morning, 
and  make  arrangements  with  some  captain 
of  a  vessel  to  take  them.  There  were  two 
vessels  there  running  to  Boston,  and  I  was 
to  make  an  arrangement  with  either  of  them 


in 

dresses, 

etc  ,  that  I  wanted  to  take  to  my  friends. 
The  Captain  and  Mr.  Hill  had  a  private 
conversation,  and  when  the  Captain  came 
out,  he  consented  to  take  them.  I  was  to 
give  |iim  a  twenty-dollar  gold  piece  for 
smuggling  them  in.  I  put  them  on  board 
the  vessel  that  day,  and  he  stowed  them 
away.  The  vessel  laid  live  days  at  Boston 
before  he  could  get  a  chance  to  get  them  off, 
but  he  finally  succeeded  in  getting  them  off, 
and  expressed  them  to  Philadelphia,  where 
I  received  them,  and  brought  them  to  Bal 
timore.  I  then  took  out  the  goods,  which 
were  very  much  rumpled,  smoothed  them 
out,  and  arranged  them,  bought  some  new 
trunks,  and  repacked  them,  and  brought 
them  to  this  city. 

Dr.  Blackburn,  by  way  of  caution,  asked 
me  before  leaving  if  I  had  had  the  yellow 
fever;  and  on  my  saying  "No,"  he  said, 
"You  must  have  a  preventive  against 
catching  it.  You  must  get  some  camphor 
and  chew  it,  and  get  some  strong  cigars,  the 
strongest  you  can  get,  and  be  sure  to  keep 
gloves  on  when  handling  the  things."  He 
gave  me  some  cigars  that  he  said  he  had 
brought  from  Havana,  which  he  said  were 
strong  enough  for  any  thing. 

When  I  arrived  in  this  city,  I  turned  over 
five  of  the  trunks  to  Messrs.  W.  L.  Wall  & 
Jo.,  commission  merchants  in  this  city,  and 
bur  to  a  man  by  the  name  of  Myers  from 
Boston,  a  sutler  in  Sigel's  or  Weitzel's 
Jivision.  He  said  he  had  some  goods  which 
le  was  going  to  take  to  Newbern,  North 
Carolina,  and  I  told  him  that  I  had  a  lot 
>f  goods  that  I  wanted  to  sell,  and  to  make 
he  best  market  I  could  for  them,  I  would 
urn  them  over  to  him  on  commission.  I 
ilso  told  him  I  would  shortly  have  more, 
ind  mentioned  that  I  had  disposed  of  som'e 
o  Wall  &  Co.,  of  this  city.  Dr.  Blackburn 
old  me,  when  I  was  making  arrangements, 
hat  J  should  let  the  parties  to  whom  I 
isposed  my  goods  know  that  I  would  have 

big  lot  to  sell,  as  it  was  in  contemplation  to 
et  together  about  a  million  dollars'  worth 
f  goods  and  dispose  of  them  in  this  way. 

Dr.  Blackburn  stated  that  his  object  in 
aving  these  goods  disposed  of  in  different 
ities,  was  to  destroy  the  armies  or  anybody 
lat  they  came  in  contact  with.  All  these 
oods,  he  told  me,  had  beer  carefully  infected 
n  Bermuda  with  yellow  fever,  small-pox, 
nd  other  contagious  diseases.  The  goods  in 
valise,  which  were  intended  for  President 
incoln  I  understood  him  to  say.  had  been 


56 


THE  CONSPIRACY    TRIAL. 


infected  both  with  yellow  fever  and  small 
pox.  This  valise  I  declined  taking  charge 
of,  and  turned  it  over  to  him  at  the  Halifax 
Hotel,  and  I  afterward  heard  that  it  had 
been  sent  to  the  President. 

On  the  five  trunks  that  I  turned  over  to 
W.  L.  Wall  &  Co.,  I  got  an  advance  of  $100. 
Among  these  five  trunks  there  was  one  that 
was  always  spoken  of  by  Blackburn  to  me 
as  "  Big  No.  2,"  which  he  said  I  must  be  sure 
to  have  sold  in  Washington. 

On  disposing  of  the  trunks,  I  immediately 
left  Washington,  and  went  straight  through 
until  I  got  to  Hamilton,  Canada.  In  the 
waiting-room  there  I  met  Mr.  Holcombe  and 
Mr.  Clement  C.  Clay.  They  both  rose,  shook 
hands  with  me,  and  congratulated  me  upon 
my  safe  return,  and  upon  my  making  a  for 
tune.  They  told  me  I  should  be  a  gentleman 
for  the  future,  instead  of  a  working-man  and 
a  mechanic.  They  seemed  perfectly  to  under 
stand  the  business  in  which  I  had  been 
engaged.  Mr.  Holcombe  told  me  that  Dr. 
Blackburn  was  at  the  Donegana  Hotel  in 
Montreal,  and  that  I  had  better  telegraph  to 
him,  stating  that  I  had  returned. 

As  Dr.  Blackburn  had  requested  me  to 
telegraph  to  him,  as  soon  as  I  got  into 
Canada,  I  did  so;  and  the  next  night,  be 
tween  11  and  12  o'clock,  Dr.  Blackburn 
came  up  and  knocked  at  the  door  of  my  house. 
I  was  in  bed  at  the  time.  I  looked  out  of 
the  window  and  saw  Dr.  Blackburn  there. 
Said  he,  "Come  down,  Hyams,  and  open  the 
door;  you're  like  all  damned  rascals  who 
have  been  doing  something  wrong — you're 
afraid  the  devil  is  after  you."  He  was  in 
company  with  Bennett  H.  Young.  I  came 
down  and  let  him  in.  He  asked  me  how  1 
had  disposed  of  the  goods,  and  I  told  him. 
"Well,"  said  he,  ''that  is  all  right,  as  long  as 
big  No.  2  went  into  Washington;  it  will  kill 
them  at  sixty  yards'  distance."  I  then  told 
the  Doctor  that  every  thing  had  gone  wrong  at 
my  home  in  my  absence;  that  I  needed  some 
funds;  that  my  family  needed  money.  He 
said  he  would  go  to  Colonel  Jacob  Thompson 
and  make  arrangements  for  me  to  draw  upon 
him  for  any  amount  of  money  I  required. 
He  then  said  that  the  British  authorities  had 
solicited  his  services  in  attending  to  the  yellow 
fever  that  was  then  raging  in  Bermuda;  that 
he  was  going  on  there;  and  that  as  soon  as  he 
came  back  he  would  see  me.  I  went  up  to 
Jacob  Thompson  the  next  morning,  and 
told  him  what  Dr.  Blackburn  had  said.  He 
said,  "Yes;  Dr.  Blackburn  had  been  there, 
and  had  made  arrangements  for  me  to  draw 
$100  whenever  it  was  shown  that  I  had  made 
disposition  of  the  goods  according  to  his 
direction."  1  told  him  I  needed  money;  that 
I  had  been  so  long  away  from  home  that 
every  thing  1  had  was  gone,  and  I  wanted 
money  to  pay  my  rent,  etc.  He  said,  "I  will 
give  you  $50  now,  but  it  is  against  Dr. 
Blackburn's  request;  when  you  show  me  that 
you  have  sold  the  goods,  1  will  give  you  the 


balance."  lie  asked  me  to  give  him  a 
receipt,  which  I  did:  "Received  of  Jacob 
Thompson  he  sum  of  $50,  on  account  of 
Dr.  Blackburn."  That  was  about  the  llth 
or  12th  of  August  last.  The  next  day  I 
wrote  to  Messrs.  Wall  &  Co.,  of  Washington, 
desiring  them  to  send  me  an  account  of  the 
sales,  and  the  balance  due  me.  When  I 
received  their  answer,  I  took  it  up  to  show 
to  Colonel  Thompson.  He  then  said  he  was 
perfectly  satisfied  I  had  done  my  part,  and 
gave  me  a  check  for  $50  on  the  Ontario 
Bank.  I  gave  him  a  receipt:  "Received 
from  Jacob  Thompson  $100,  in  full,  on 
account  of  Dr.  Luke  P.  Blackburn." 

I  told  Jacob  Thompson  of  the  large  sum 
which  Dr.  Blackburn  had  promised  me  for 
my  services,  and  that  he  and  Mr.  Holcombe 
had  both  told  me  that  the  Confederate  Gov 
ernment  had  appropriated  $200,000  for  the 
purpose  of  carrying  it  out;  but  he  would  not 
pay  me  any  thing  more. 

When  Dr.  Blackburn  returned  from  Ber 
muda,  I  wrote  to  him  at  Montreal,  and  told 
him  I  wanted  some  money,  and  that  he 
ought  to  send  me  some;  but  he  made  no  reply 
to  my  letter.  I  was  then  sent  down  to  Mon 
treal  with  a  commission  for  Bennett  II. 
Young,  to  be  used  in  his  defense  in  the  St. 
Albans  raid  case.  I  there  met  Dr.  Black 
burn.  He  said  I  had  written  some  hard  let 
ters  to  him,  abusing  him,  and  that  he  had  no 
money  to  give  me.  He  then  got  into  his  car 
riage  at  the  door,  and  rode  oft'  to  some  races,  I 
think,  and  never  gave  me  any  more  satisfac 
tion.  As  I  wanted  money  before  leaving  for  the 
States,  I  went  to  the  Clifton  House,  Niagara. 
Dr.  Blackburn  told  me  he  had  no  money 
with  him  then,  but  that  he  would  go  to  Mr. 
Holcombe  and  get  some,  as  he  had  Confed 
erate  funds  with  him.  Blackburn  said  that 
when  I  returned  he  would  get  the  money  for 
the  expedition,  from  either  Holcombe  or 
Thompson,  it  did  not  matter  which.  From 
this,  and  from  Holcombe  and  Clay  both 
shaking  hands  with  me,  and  congratulating 
me  at  Hamilton  upon  my  safe  return,  I 
thought,  of  course,  they  knew  all  about  it. 

I  do  not  know  that  Dr.  Stuart  Robinson 
knew  of  the  business  in  which  I  was  engaged, 
but  he  took  good  care  of  me  while  I  was 
at  Toronto,  in  the  fall,  and  until  Dr. 
Blackburn  wrote  for  me  in  the  spring;  and 
when  he  gave  rne  Dr.  Blackburn's  letter,  ho 
told  me  to  borrow  the  money  from  Mr. 
Preston  to  take  me  to  Montreal,  as  he  said 
he  did  not  want  to  commit  an  overt  act 
against  the  United  States  Government  him 
self.  Mr.  Preston  lent  me  $10  to  go  to 
Montreal.  On  arriving  at  that  place,  accord 
ing  to  the  directions  in  Dr.  Blackburn's 
letter,  I  went  to  Mr.  Slaughter  to  get  the 
means  to  take  me  to  Halifax.  Mr.  Slaughter 
was  short  of  funds,  and  had  onlv  $25  that  he 
could  give  me.  He  said  that  I  had  better  go 
to  Mr.  Holcombe,  who  was  staying  at  the 
Donegana  Hotel,  and  he  would  give  me  the 


STARVATION  OF  UNION    PRISONERS. 


57 


oalance.  I  went  to  the  hotel  and  sent  up  my 
name.  Mr.  Holcombe  had  heard  of  my 
name,  and  lie  sent  for  me  to  come  up.  I 
told  him  that  I  wanted  some  money  to  take 
me  to  Halifax;  he  asked  me  how  much  I 
wanted;  I  told  him  as  much  as  would  make 
up  $40;  he  said,  "You  had  better  take  $50;" 
but  as  F  did  not  want  that  much,  I  only  took 
enough  to  make  up  $40.  When  I  came  to 
Washington  to  dispose  of  the  goods,  which 
was  on  the  5th  of  August,  1864,  I  put  up  at 
the  National  Hotel ;  registered  my  name  as 
J.  W.  Harris,  under  which  name  I  did 
business  with  Wall  &  Co. 

W.  L.  WALL. 
For  the   Prosecution. — May  29. 

I  nm  an  auction  and  commission  merchant 
in  this  city.  In  August  last,  while  I  was  out 
of  town,  a  person  named  Harris  called  at  my 
store,  and  told  rny  book-keeper  that  he  had 
some  shirts  that  he  wanted  to  sell  at  auction, 
and  asked  him  if  he  would  sell  them  the  next 
morning.  The  clerk  told  him  he  would. 
Harris  then  asked  for  an  advance  of  $100. 
The  money  was  given  him,  and  the  shirts 
were  sold  the  next  morning. 

A.  BRENNER. 

For  the  Prosecution. — May  29. 

During  last  summer  I  was  a  clerk  in  the 
service  of  Mr.  Wall,  of  this  city.  In  the 
month  of  August  a  man  named  J.  W.  Harris 
came  to  the  store  late  one  evening.  I  sup 
posed  him  to  be  a  sutler  returning  home. 
He  said  he  had  some  twelve  dozen  shirts  and 
some  coats,  which  he  asked  me  to  sell.  I 
advanced  him  $100  on  them,  and  sold  them 
the  next  morning.  They  were  packed  in  five 
trunks. 

On  the  1st  of  September  he  wrote  from 
Toronto,  for  an  account  of  sales  and  the  bal 
ance  of  the  money,  as  follows : 

Messrs.    Wall  &  Co.,  A.uction  and  Commission 

Merchants : 

GENTLEMEN:  On  Friday,  the  5th  of  August, 
last  month,  I  left  in  your  care  five  trunks, 
containing  one  hundred  and  fifty  fancy  woolen 
shirts  and  twenty-five  coats,  to  be  sold  at  auc 
tion  on  the  next  morning,  and  business  call 
ing  me  to  Toronto,  I  have  not  been  able  to 
go  to  the  States  since.  I  beg  most  respect 
fully  that  you  will  send  me  an  account  of 
sales,  and  a  check  on  New  York  for  the  pro 
ceeds.  I  have  written  before,  but  I  have  re 
ceived  no  answer.  I  shall  come  over  in  Oc 
tober,  about  the  10th,  with  some  five  or  six 
thousand  pairs  of  boots  and  shoes. 

*  Yours  most  respectfully, 

J.  W.  HARRIS, 

Care  of  Post-office  Box  No.  126,  Toronto,  C.  W. 

I  sent  him  the  following  account  of  the 
sales,  and  the  balance  of  the  money : 


SALES  ON  ACCOUNT  OF  J.  W.  HARRIS,  ESQ. 

W  shirts,  purchased  by  Stoieler  &  Seigel $134  •«() 

9  coats,  purchased  by  Walker 4  50 

.1  trunks,  purchased  by  Win.  Smith 1  60 

2  truuks,  purchased  by  Hand 2  50 


April  6.    Cash $100  00 

Sept.  5.    Com.,  duty,  and  war  tax 14  2'.t 

Cash,  per  balance 28  til 


$M2  90 


$142  90  $142  90 

The  shirts  I  bought  were  tossed  into  the 
trunks  promiscuously,  and  I  supposed  the 
packing  had  been  done  in  a  hurry.  When 
I  first  opened  the  trunks  I  was  in  doubt 
about  the  money  I  had  advanced  being  a 
safe  investment,  but  a  close  inspection  of  the 
clothing  showed  it  to  be  new,  and  that  it  had 
not  been  worn. 


STARVATION  OF  UNION  PRISONERS. 

SALOME  MARSH. 
For  the  Prosecution. — May  25. 

I  entered  the  United  States  service  in  1861 
as  Lieutenant  of  the  Fifth  Maryland  Volun 
teer  Infantry,  and  served  until  the  31st  of 
August,  1864.  At  the  time  I  quit  the  service 
I  held  the  rank  of  Lieutenant-Colonel. 

While  Major,  I  was  a  prisoner  of  war, 
confined  at  Libby  Prison,  from  the  15th  of 
June,  1863,  to  the  21st  of  March,  1864. 

1  was  captured  near  Winchester,  on  the 
Martinsburg  road,  on  the  15th  of  June.  I 
was  then  in  General  Milroy's  command,  and 
at  the  time  of  my  capture  I  was  in  command 
of  my  regiment.  I  was  captured  by  General 
Swell's  corps,  of  the  rebel  army.  I  was 
taken  to  Winchester,  and,  on  account  of  ill 
health,  was  kept  there  two  weeks  in  hospital. 
I  was  somewhat  sick  at  the  time  of  my  cap 
ture,  from  excessive  duty,  exposure,  etc.  At 
the  expiration  of  two  weeks  my  health  some 
what  improved.  I  was  then  compelled  to 
march  to  Staunton  in  a  feeble  condition;  and 
on  the  road  was  treated  very  kindly  by  the 
officer  in  charge  of  the  squad.  I  arrived  in 
Libby  Prison,  and  was  incarcerated  there. 
The  rations  we  received  there  when  I  first 
arrived  were  small,  but  such  as  they  gave  us 
at  first  were  tolerably  fair.  There  was  about 
one  loaf  of  bread  allowed  to  two  men — half 
a  loaf  per  man — and,  I  judge,  about  four 
ounces  of  meat,  and  about  three  spoonfuls 
of  rice.  That  constituted  the  ration  that  we. 
received  at  first.  After  I  had  been  there 
about  four  months,  the  meat  was  stopped, 
and  we  only  received  it  occasionally.  Then 
they  took  the  bread  from  us,  and  gave  us 
instead  what  they  called  corn-bread,  but  it 
was  of  a  very  coarse  character.  I  have 
known  the  officers  there  to  be  without  meat 
for  two  or  three  weeks  at  a  time,  and  receive 
nothing  but  the  miserable  corn  bread  that 
they  gave  us.  Occasionally  they  would  dis 
tribute  some  few  potatoes,  but  of  the  very 
worst  character,  rotten,  etc.,  such  as  the  men 


58 


THE    CONSPIRACY   TRIAL. 


could  hardly  eat.  This  continued  for  some 
time.  The  officers  held  a  meeting  there  in 
regard  to  the  treatment  we  were  receiving, 
and  a  letter  was  sent  to  General  Ould,  the 
rebel  Commissioner  of  Exchange,  signed  by 
Colonel  Streight,  I  think,  who  was  chairman 
of  the  meeting  at  the  time,  complaining  of 
our  treatment,  and  asking  that  we  should  re 
ceive  better  treatment.  General  Ould  sent  a 
written  reply,  stating  that  our  treatment  was 
good  enough,  better  than  their  prisoners  were 
receiving  in  our  prisons,  at  Fort  Delaware 
and  other  places. 

When  I  had  been  there  some  five  months,  I 
was  taken  sick  with  the  dropsy,  for  the  want 
of  proper  nourishment,  proper  diet,  etc.,  and 
was  quite  ill,  and  was  sent  to  the  hospital. 
I  remained  there  some  few  weeks.  During 
my  stay  in  the  hospital  I  saw  some  enlisted 
men  brought  in  from  Belle  Isle.  The  con 
dition  of  these  men  was  horrible  in  the  ex 
treme.  I  am  satisfied  from  their  appearance 
that  they  were  in  a  starving  condition.  Out 
of  a  squad  of  forty  that  were  brought  in,  at 
least  from  eight  to  twelve  died  the  first  night 
they  were  brought  there.  I  asked  the  As 
sistant  Surgeon  in  charge  of  the  officers'  de 
partment  of  the  hospital — I  forget  his  name; 
he  was  very  kind  to  us,  though,  and  very 
much  of  a  gentleman — what  was  the  matter 
with  these  men.  He  stated  that  their  condi 
tion  was  owing  to  the  want  of  proper  treat 
ment;  that  they  did  not  receive  the  nourish 
ment  that  they  ought  to  have  for  such  men. 
I  suppose  I  had  been  in  that  hospital  about 
two  weeks  when  two  of  the  officers  made 
their  escape.  Major  Turner,  the  keeper  of 
Libby  Prison — who  was  a  very  passionate 
man,  and  very  insulting  to  the  officers,  al 
ways  insulting  in  his  remarks  whenever  he 
had  occasion  to  speak  to  any  of  them,  and 
very  ungentlemanly — took  it  into  his  head  to 
remove  us  from  that  place,  and  take  us  back 
to  Libby  Prison.  He  had  a  room  washed 
out  for  us  in  Libby,  and  removed  us  to  that 
room  while  it  was  in  a  wet  condition,  al 
though  some  of  the  officers  who  were  in  the 
hospital  were  in  a  dying  state.  We  were 
placed  in  that  wet  room  and  compelled  to 
remain  there  twenty-four  hours,  without  cot. 
bed.  or  any  thing  else  to  lie  upon,  and  with 
out  a  morsel  to  eat,  as  a  punishment,  be 
cause  those  two  men  had  escaped.  The 
treatment  generally  to  prisoners  was  of  a  very 
harsh  character. 

Colonel  Powell  spoke  to  Turner  in  regard 
to  the  treatment  he  had  inflicted  upon  those 
men.  Colonel  Powell  said  he  thought  it  was 
wrong  to  punish  a  parcel  of  sick  and  dying 
men  for  the  sake  of  two  who  had  attempted 
to  escape.  His  reply  was,  as  near,  as  I  can 
recollect,  "It  is  too  damned  good  for  you."* 

The  only  opportunity  I  had  of  knowing 
the  treatment  enlisted  men  received,  was  from 


seeing  those  men  that  were  brought  to  the 
hospital  while  I  was  there.  They  were  in  an 
emaciated  condition,  and  their  whole  appear 
ance  indicated  that  they  were  suffering  for 
want  of  food,  and  were  in  a  state  of  starva 
tion.  I  noticed  that,  though  in  a  totteiing 
and  feeble  condition,  they  were  eager  to  ob 
tain  something  to  eat,  and  would  grasp  at 
any  thing  that  was  offered  them  in  the  shape 
of  victuals;  and  I  am  satisfied  that  the  pris 
oners  brought  to  the  hospital  died  simply  of 
neglect,  and  the  want  of  proper  food — of 
starvation. 

The  only  reason  that  I  could  hear  from  the 
rebel  authorities  for  their  treatment  of  Union 
prisoners,  was  that  it  was  a  matter  of  retal 
iation  ;  they  said  that  their  prisoners  were 
treated  in  a  worse  manner  than  we  were. 

As  to  the  quantity  of  food  given  us,  a  man 
might  possibly  live  on  what  they  gave  us  at 
first,  although  it  was  not  near  what  we 
would  call  a  full  ration.  Subsequently,  the 
quantity  given  could  not  possibly  support  life 
for  any  length  of  time.  The  corn  bread 
which  they  gave  us  was  corn-meal  and  bran; 
it  was  very  coarse,  baked  in  a  rough  condi- 
dition,  and  very  often  we  had  to  live  on  that 
and  water  alone  for  days  at  a  time. 

FREDERICK  MEMMERT. 
For  the  Prosecution. — May  25. 

I  have  held  the  rank  of  Captain  in  the 
United  States  service  for  two  years  and  ten 
months.  On  the  15th  of  June,  1863,  1  waa 
taken  prisoner,  and  was  exchanged  on  the 
1st  of  May,  1864.  I  was  confined  in  the  Libby 
Prison,  and  the  treatment  we  received  there 
was  simply  awful. 

When  we  went  there  first,  we  had  half  a 
loaf  of  wheat-bread,  between  three  arid  four 
ounces  of  meat,  and  about  two  tablespoon- 
fuls  of  rice.  That  was  continued  lor  about 


*  In  contrast  with  the  above,  and  to  show  how  Confed 
erate  prisoners  were  treated  in  "Northern"  prisons,  we 


give  the  following  extract  from  a  letter  received  by  ua 
during  the  progress  of  this  trial: 

"BALTIMORE,  June  21,  18f>3. 

*  *  *  "When  South  Carolina  took  the  fatal  step  of 
secession,  I  was  lecturing  in  the  University  of  Virginia, 
having  an  engagement  which  would  have  paid  me  $5(K)  for 
two  weeks  more  work.  I  cast  in  my  lot  with  the  Southern 
Confederacy,  and  with  that  was  wrecked  on  the  '  Lee ' 
shore. 

"  I  was  taken  prisoner  on  the  25th  of  January,  1*61,  and 
held  as  a  prisoner  of  war  until  the  5th  of  June,  ISC'),  when 
I  was  released,  and  took  the  oath  of  allegiance  to  the 
United  States.  Fourteen  months  of  my  imprisonment  were 
spent  as  superintendent  of  a  prisoners'  school  at  Point 
Lookout.  This  school  had  a  library  of  3,000  volumes, 
mostly  school  books.  There  were  l.LHX)  pupils  and  50  teach 
ers.  We  taught  many  poor  fellows  to  read  and  write  who 
had  never  understood  such  mysteries  before. 

"  But  we  did  not  confine  ourselves  to  the  lower  branches. 
We  taught  all  the  English  branches,  Latin,  Grevk,  French. 
German,  and  mathematics  through  trigonometry. 

"  I  was  appointed  agent  for  the  distribution  of  supplies 
furnished  by  the  C.  S.  for  the  prisoners  at  Point  Lookout, 
and  as  such  distributed  over  $200,000  worth  of  goods.  Af 
terward  I  was  promoted  to  the  high  position  of  '  Mayor 
of  the  City  of  Canvas,'  and  was  charged  with  the  duty  of 
I  maintaining  law  and  order  among  my  22,000  comrade*. 
Thus  I  have  passed  sixteen  long  mouths  a  prisoner  " 


STARVATION  OF    UNION   PRISONERS. 


59 


four  months;  after  that  the  treatment  was 
very  bad.  We  had  a  meeting,  at  which 
Colonel  Streight  presided,  and  of  which  Col 
onel  Irvine,  who  was  afterward  our  Assist 
ant  Exchange  Commissioner,  was  Secretary. 
"We  sent  a  communication  to  Judge  Ould, 
which  he  sent  to  the  rebel  Secretary  of  War, 
Seddon.  We  received  for  answer  that  they 
could  do  nothing  for  us ;  that  it  was  good 
enough  for  Yankees;  that  their  prisoners 
were  treated  just  as  badly  as  we  were;  and 
that  they  could  not  help  us  in  any  way.  We 
then  sent  another  communication,  asking 
them  to  give  us  our  money,  (which  they  had 
taken  away  from  us  when  we  came  to  the 
Libby,)  that  we  might  have  something  to 
buy  food  with,  but  they  would  not  do  that. 
I  had  rny  money  hid  under  my  shoulder- 
straps,  and  kept  it  there;  but  the  others  had 
given  theirs  up,  and  it  was  never  returned. 

We  often  had  no  meat  for  twenty  days. 
After  I  had  been  there  four  months,  they 
stopped  the  meat  for  five  or  six  days,  and 
gave  us  bread  and  water,  a  little  beans  and 
rice.  At  this  time  we  got  half  a  loaf  of  corn- 
bread,  or  about  ten  ounces,  I  guess.  When 
I  left  Libby,  we  had  had  nothing  but  corn- 
bread  and  water  for  twenty  days.  The  pris 
oners  were  very  much  reduced  and  emaciated 
by  this  treatment,  and  a  great  many  of  them 
had  the  scurvy. 

The  bearing  of  the  keepers  of  the  prison 
was  rough  and  insulting,  and  they  abused  us 
in  every  way  they  could.  I  went  to  the  hos 
pital  two  or  three  times  when  our  Lieutenant- 
Colonel  died,  and  the  prisoners  who  were 
brought  in  looked  awful;  I  can  not  find  any 
word  to  describe  how  they  looked.  Their 
condition  was  the  result  of  starvation. 

After  the  battle  of  Chickamauga,  and  the 
wounded  prisoners  from  the  West  were  brought 
in,  I  saw  some  fifteen  or  sixteen  amputated 
cases  placed  on  a  cart,  and  a  rope  tied  around 
them,  so  that  they  could  not  fall  off;  and  they 
were  carried  in  that  way  from  the  depot  to 
the  hospital,  although  right  opposite  Libby, 
not  more  than  one  thousand  yards  off,  J 
guess,  there  were  twenty  or  twenty-five  am 
bulances  not  in  use. 

At  the  time  I  left  Libby,  I  had  the  scurvy 
BO  badly  that  I  could  hardly  walk,  and  I 
have  been  sick  pretty  much  ever  since;  and, 
though  I  have  now  recovered,  I  still  feel  it, 
and  have  not  the  strength  I  used  to  have. 

When  Turner,  the  keeper  of  the  prison. 
came  up,  which  was  very  seldom,  we  spoke 
to  him  about  ameliorating  the  condition  of 
the  prisoners.  We  also  spoke  to  a  committee 
from  their  Senate  that  was  appointed  to  go 
through  the  Libby  and  examine  our  condi 
tion;  they  reported  favorably,  although  we 
showed  them  the  bread  we  got,  and  told  them 
we  received  no  meat,  and  little  of  any  thing 
else. 

I  went  to  Turner  once  and  told  him  I 
wanted  to  get  some  medicine;  that  I  was  get 
ting  worse,  and  could  hardly  walk;  and  that 


the  doctor  would  not  give  me  any.  Turner 
said  he  had  not  got  any.  His  words  were, 
u  You  can  not  have  any;  it  don't  make  any 
difference  to  me.  What  the  hell  have  I  to  do 
with  it?"  When  I  told  him  that  I  had 
nothing  to  eat,  and  no  money  to  buy  any 
thing,  he  said,  "That's  good  enough  for 
Yankees." 

We  once  remonstrated  with  Dick  Turner, 
who  was  an  inspector  there,  and  told  him 
that  we  did  not  get  any  thing  to  eat,  and  how 
things  were.  He  said,  "That's  good  enough 
for  you.  Our  prisoners  are  just  as  badly 
treated  by  your  fellows  as  you  are  here,  and 
you  have  no  business  to  come  down  here.  I 
wish  to  kill  you  off.  If  I  had  the  command, 
I  would  hang  every  God  damned  one  of 
you." 

BENJAMIN  SWEERER. 
For  the  Prosecution. — May  25. 

I  am  Color  sergeant  of  the  Ninth  Mary 
land  Regiment.  I  was  captured  on  the  18th 
of  October,  1863,  and  was  held  prisoner  at 
Belle  Island  for  over  five  months,  and  seven 
days  at  Scott's  Building.  There  were  about 
thirteen  thousand  prisoners,  about  half  of 
whom  were  provided  with  shelter;  the  rest 
were  just  on  the  naked  sands  of  the  island. 
I  lay  there  two  months  without  ever  putting 
my  head  under  shelter,  although  it  was  in 
the  winter  time.  The  treatment  of  the  pris 
oners  was  brutal,  and  we  had  not  half  enough 
to  live  on.  There  were  twenty-five  pounds 
of  meat,  the  biggest  part  of  which  was  bone, 
served  out  for  a  hundred  men,  and  corn-bread 
with  the  husks  ground  up  in  it.  Not  having 
fuel  enough  to  warm  us,  and  not  provisions 
enough  to  live  on,  I  saw  the  men  freezing  to 
death  on  the  island.  I  saw  them  starving  to 
death;  and,  after  they  were  dead,  I  saw  them 
lying,  for  eight  or  nine  days,  outside  of  the 
intrenchments,  where  we  were  kept,  and  the 
hogs  eating  them.  We  were  refused  permis 
sion  to  bury  them.  I  asked  myself,  as  a 
favor,  to  be  allowed  to  bury  our  prisoners, 
and  was  refused  permission.  I  spoke  to 
Lieutenant  Bossieux,  who  had  charge  of  the 
sland,  about  the  treatment  of  our  men;  and 
he  told  me  he  had  nothing  to  do  with  it;  that 
t  was  in  accordance  with  the  orders  he  had 
received  from  Major  Turner,  the  keeper  of 
the  rebel  prison.  The  deaths  of  the  pris 
oners  were  caused  mostly  by  starvation.  I 
helped  to  carry  out  from  ten  to  fifteen  and 
twenty  a  day. 

A  great  many  of  the  prisoners,  to  my 
knowledge,  volunteered  to  work  at  shoe-mak 
ing:  and  building  a  furnace  on  the  island,  in 
order  to  support  themselves. 

When  I  came  home  I  weighed  one  hundred 
and  twenty-three  pounds;  my  ordinary  weight 
in  health  is  one  hundred  and  seventy  or  one 
hundred  and  eighty.  I  do  not  think  I  could 
have  lasted  a  month  longer  there;  I  was 
pretty  nearly  gone  when  I  left. 


60 


THE    CONSPIRACY   TRIAL. 


WILLIAM  BALL. 
for  the  Prosecution. — May  25. 

I  enlisted  in  the  service  of  the  United 
States  in  April,  1862,  and  was  captured  by 
the  enemy  on  the  7th  of  May,  1864.  I  was 
a  prisoner  of  war  at  Anderson ville,  Georgia, 
eleven  months  and  twenty-three  days.  At 
the  time  I  was  there,  there  were  about  thirty- 
two  thousand  prisoners.  The  treatment  of 
the  prisoners  was  poor  indeed;  they  were 
turned  into  a  swamp,  with  no  shelter  what 
ever,  and  were  stripped  of  all  their  clothing, 
blankets,  hats,  caps,  shoes,  money,  and  what 
ever  they  had.  Where  we  were  confined 
there  was  no  shelter  and  no  trees,  although 
there  were  plenty  of  pine  woods  about  there. 
The  encampment  was  nothing  but  an  open 
swamp,  with  a  hill  on  each  side. 

Every  morning,  about  nine  or  ten  o'clock, 
they  would  bring  a  wagon  on  the  ground,  with 
corn-meal  and  some  bacon.  Of  the  corn-meal, 
which  was  ground  up,  cobs  and  all,  and  was  full 
of  stones  and  one  thing  and  another,  they  gave 
each  man  half  a  pint,  and  two  ounces  of  ba 
con,  which  was  all  alive,  rancid,  and  rotten, 
and  a  half  spoonful  of  salt.  This  was  to 
last  us  twenty-four  hours.  Once  in  a  while 
we  would  get  hold  of  a  good  piece  of  bacon, 
but  that  was  not  often.  The  provisions  served 
out  to  us  were  of  such  a  character  that  no 
man  would  eat  them  unless  he  was  in  a 
starving  condition  ;  and  from  the  amount  and 
character  of  the  food  served  out,  it  would  not 
be  possible  to  sustain  human  life  for  any 
length  of  time. 

The  effect  of  this  treatment  upon  the  health 
of  the  prisoners  was  very  bad;  it  killed  them 
off  rapidly.  The  deaths  averaged  from  sixty 
to  a  hundred  a  day;  and  one  day  one  hundred 
and  thirty-three  died.  These  deaths  were 
caused  principally  by  starvation.  There  was 
some  remonstrance  addressed  to  the  rebel 
authorities  by  the  prisoners  in  regard  to  thtir 
treatment;  but  they  said  they  did  the  best 
they  could  for  them,  and  they  did  not  care  a 
damn  whether  the  Yankees  died  or  not. 

I  remember  Howell  Cobb  visiting  Ander- 
sonville  some  time  in  February.  He  is  the 
man  who  was  formerly  the  Secretary  of  the 
Treasury.  He  made  some  very  bitter  re 
marks,  in  a  speech  to  the  rebels,  in  reference 
to  our  prisoners.  As  to  our  treatment,  he 
said  that  was  the  best  that  could  be  done  for 
us;  but  if  the  authorities  liked  to  do  better 
they  probably  could,  but  they  did  not  seem  to 
care  much  about  it.  I  remember  he  made 
some  reference  in  his  speech  to  a  plan  on 
hand  to  burn  and  plunder  Northern  cities 

The  heat  in  the  open  sun  was  very  intense, 
and  the  water  was  very  poor  indeed.  You 
could  get  water  by  digging  down  half  a  foot. 
There  was  a  place  a  little  way  above  into 
which  they  threw  all  the  dirt  and  garbage 
that  came  from  Anderson  ville,  and  the  water 
we  were  obliged  to  drink  ran  through  all  this 
filth.  Whether  this  was  designed  or  not,  I 


do  not  know,  but  they  did  not  seem  to  care. 
A  committee  from  the  prisoners  was  sent  to 
Captain  Wirz,  who  was  in  command  of  the 
interior  of  the  prison,  in  respect  to  this,  and 
he  said  he  did  not  care  a  damn  whether  the 
water  ran  through  the  garbage  or  not,  or 
whether  we  got  any  or  none. 

When  we  first  went  there,  there  were  on  an 
average  as  many  as  six  or  eight  of  the  prison 
ers  shot  every  day.  If  a  man  would  stick 
his  nose  half  a  foot  over  the  line,  he  would 
be  shot.  It  was  said  the  rebel  soldiers  were 
rewarded  with  thirty  days'  furlough  for  shoot 
ing  a  Yankee;  and  I  never  heard  of  their 
wantonness  in  shooting  our  soldiers  being  re 
buked  by  the  rebel  authorities. 

The  treatment  of  the  prisoners  in  the  hos 
pital  was  very  poor.  All  they  would  give 
them  was  pitch-pine  pills;  pitch-pine  pills  for 
diarrhea,  and  pitch-pine  pills  for  the  scurvy, 
the  head-ache,  or  anything  else.  These  pills 
were  made  out  of  the  pitch  that  runs  out  of  the 
trees  there,  and  a  little  vinegar.  They  got  no 
medicine.  Medicines,  it  was  said,  were  sent 
there  by  the  Confederate  Government,  but 
they  were  sold  by  the  doctor  in  charge  for 
greenbacks. 

The  money  that  was  taken  from  the  prison 
ers  was  never  returned  to  them — not  a  cent  of 
it.  AVhen  I  was  captured,  they  took  my  shoes 
off,  and  I  walked  bare-foot  on  the  pike  from 
near  Waterford  to  Gordonsville,  and  then  they 
took  my  money  and  clothes.  I  had  nothing 
but  a  pair  of  drawers  and  shirt  for  nine 
months  in  Anderson  ville.  I  lay  there  for 
this  whole  nine  months  in  the  open  field 
without  a  bit  of  shelter;  and  there  were  thou 
sands  in  the  same  fix.  The  men  would  die 
there  in  the  morning,  and  by  night  nobody 
could  go  within  fifty  feet  of  them.  They  had 
to  be  put  into  the  wagons  with  long  wooden 
pitch-forks,  when  they  were  carried  off  and 
put  into  the  trenches. 

Colonel  Gibbs  was  in  command  of  the  post, 
and  Captain  Wirz  was  in  command  of  the 
interior  of  the  prison.  Clothing  that  was 
sent  to  Anderson  ville  by  our  Government, 
consisting  of  blankets,  pants,  socks,  and  other 
things,  Wirz  took  himself,  and  put  into  his 
own  house,  and  sold. 

Up  to  March  24th,  when  I  left  Anderson- 
ville,  16,725  of  the  prisoners  had  died;  that 
was  the  number  I  took  from  the  books  myself, 
and  there  were  at  that  time  about  1,500  not 
able  to  be  moved.  It  was  the  rations  they  got 
that  brought  on  their  sickness,  and  when  they 
got  sick  they  could  not,  eat  the  stuff  served 
out,  and,  of  course,  they  starved.  As  to 
medical  treatment,  there  was  nothing  at  all 
of  any  benefit. 

CHARLES  SWEENEY. 
for  the  Prosecution. — May  26. 

My  present  home  is  in  the  State  of  New 
York.  I  was  a  private  in  the  United  Statea 
service,  and  was  captured  by  the  rebels  twice. 


STARVATION    OF    UNION    PRISONERS. 


The  first  time  1  was  taken  prisoner,  I  was  con 
fined  two  months  and  ten  days  at  Libby;  the 
second  time  I  was  a  prisoner  fifteen  months, 
of  which  I  spent  two  months  in  Belle  Isle  hos 
pital,  near  Richmond;  about  six  months  at 
Anderson ville,  in  Georgia;  and  the  rest  of  the 
time  at  Savannah. 

At  Belle  Isle  I  had  less  than  half  a  pound 
of  bread  a  day,  and  once  in  a  while  got  a  lit 
tle  rice  soup.  For  about  six  weeks  I  do  not 
believe  I  had  a  piece  of  meat  as  big  as  my  two 
fingers.  When  I  went  to  the  hospital,  the 
bread  was  a  little  better,  but  there  was  very 
little  meat.  They  pretty  nearly  starved  me. 
For  about  four  or  five  months  after  I  got  to 
Andersonville  they  gave  me  a  pretty  good 
ration  of  the  kind  it  was.  I  had  all  I  wanted 
to  eat  of  corn-meal,  but  the  bacon  was  pretty 
strong.  After  August  they  began  to  cut 
down  our  ration,  and  our  allowance  was  very 
short. 

Old  Captain  Wirz  told  the  guard  that  they 
must  shoot  every  Yankee  caught  with  his 
hand  or  his  head  over  the  dead-line;  and 
that  for  every  man  shot  the  guard  would 
get  a  furlough  of  thirty  days;  so  they 
used  to  kill  our  men  as  though  they  were 
brutes. 

I  had  a  brother  at  Andersonville,  who  was 
very  sick  and  dying.  For  about  eight  days, 
to  my  knowledge,  he  had  nothing  to  eat.  He 
could  not  eat  their  corn-meal,  and  what  they 
gave  him,  for  it  was  not  fit  for  a  dog  to  eat. 
I  had  a  little  money  that  I  used  to  gather 
about  the  camp,  and  I  bought  a  few  biscuits 
for  him,  but  1  could  not  get  enough  to  feed 
him  on  long,  and  he  lay  in  his  tent  and 
starved.  I  went  to  the  doctor  and  told  him 
my  brother  was  dying,  and  asked  him  to  see 
him ;  but  he  said,  "No,  I  can  not  do  it." 
Before  he  died,  my  brother  said,  "Keep  good 
courage;  stick  to  your  Government;  never 
take  an  oath  to  that  Government."  I  told 
him  I  would,  and  I  have  done  it. 

I  made  my  escape;  but  after  I  got  over 
the  stockade,  they  caught  me,  took  me  back, 
and  gagged  me  for  six  hours.  It  was  very 
cold,  and  when  I  got  up  I  could  hardly  walk, 
and  I  was  sick  in  the  hospital ;  but  in  the 
month  of  June  I  was  able  to  be  up,  and  I 
thought  I  would  try  again  to  make  my  es 
cape  and  get  to  Stoneman,  who  was  making 
a  raid,  I  heard.  I  got  out  of  the  hospital, 
and  traveled  that  night  in  the  swamps  and 
mud,  clear  up  to  my  neck,  and  made  four 
miles.  The  pickets,  however,  caught  me, 
and  took  me  back  to  Captain  Winder.  He 
told  them  to  put  me  in  the  stockade,  with  a 
ball  and  chain;  and  at  Wirz's  head-quarters 
I  was  put  in  the  stockade  all  day  in  the  hot 
sun,  with  my  arms  stretched  out.  The  sun 
affected  me  so  much  that  the  next  day  I  was 
sick,  and  for  six  days  I  could  neither  eat  nor 
drink  any  thing.  It  is  God  only  who  has  let 
me  live  this  long. 

General  Cobb  came  there  on  the  4tli  day 


of  March.  He  preached  up  to  the  guard  the 
way  the  war  was  going  on.  The  guards 
around  there  were  only  old  men  and  boys 
that  never  knew  any  thing.  He  said  to  them, 
"You  see  this  big  graveyard;  all  those  in  the 
stockade  will  be  in  the  graveyard  before  long." 
He  expected  we  were  all  going  to  be  starved 
to  death,  if  we  were  held  long  enough.  He 
said  they  would  all  perish  before  they  would 
come  back  to  the  Union  again.  He  also  said 
they  would  hang  Old  Abe  if  they  caught 
him,  as  he  supposed  Old  Abe  would  hang 
him  if  he  caught  him. 

JAMES  YOUNG. 
For  the  Prosecution. — May  26. 

I  was  a  prisoner  of  war  nine  months  and 
two  days.  I  was  confined  in  Andersonville, 
Ga.,  and  Charleston  and  Florence,  S.  C.  At 
Andersonville  the  greater  portion  of  the 
rations  were  cooked,  but  in  a  very  inferior 
way — corn-bread  and  mush,  boiled  rice  and 
boiled  bacon.  The  ration  of  bread  for  the 
day  was  about  four  inches  long,  three  wide, 
and  two  thick  ;  with  that  we  got  about  two  or 
three  ounces  of  boiled  pork.  The  effect  of 
this  stinted  diet  upon  the  health  of  the  men 
was  very  injurious;  they  were  wasting  and 
dying  all  the  time.  The  number  of  deaths 
for  August,  I  understood,  was  three  thousand 
and  forty-four.  We  were  exposed  to  the  sun, 
without  any  shelter,  though  there  was  wood 
land  all  around  us.  The  stockade,  where  we 
were  was  chopped  out  of  it  but  we  were  all 
exposed.  The  heat  during  the  day  was  ex 
treme,  but  the  nights  were  cool. 

The  water  was  very  poor;  it  was  infected 
by  the  garbage  and  filth  through  which  it 
ran. 

At  Florence  I  heard  some  hard  threats 
made  against  the  "  Yanks,"  as  they  called 
us.  Our  cavalry  were  raiding,  destroying 
their  country,  they  said,  and  they  would 
starve  us,  they  said,  in  retaliation.  We  re 
ceived  worse  treatment  at  Florence  than  at 
Andersonville,  and  got  less  rations.  The 
amount  of  food  was  not  sufficient  to  sustain 
life  for  any  long  period  of  time.  Men  that 
were  destitute  of  any  little  means  of  their 
own,  or  had  no  watches  or  trinkets  that  they 
could  sell,  kept  running  down  till  they  died. 
I  had  some  money,  and  I  bought  some  extra 
provisions,  and  kept  my  health  tolerably 
good. 

At  Charleston  I  was  imprisoned  about  three 
weeks.  We  were  treated  very  well  there, 
with  the  exception  of  the  shooting  of  our 
men  inside  the  inclosure  by  the  guards;  that 
occurred  often,  and  seemed  to  be  encouraged 
by  the  officers.  I  never  knew  of  a  man  being 
rebuked  or  punished  for  such  shooting.  At 
Andersonville  the  general  report  in  camp  was 
that  the  rebel  authorities  offered  their  men  a 
thirty  days'  furlough  for  every  "  Yank"  they 
woufd  shoot  inside  of  the  stockade. 


THE    CONSPIRACY   TRIAL. 


LIEUTENANT  J.  L.  RIPPLE. 
For  the  Prosecution. — June  10. 

I  entered  the  United  States  service,  in  the 
Thirty-Ninth  Illinois,  as  a  private,  on  the 
28th  of  October,  1861.  I  was  a  prisoner  of 
war  for  six  months  at  Andersonville,  Ga.  The 
character  of  the  food  furnished  to  the  pris 
oners  was  poor,  and  the  quantity  very  small. 
We  got  only  half  a  pint  of  corn-meal  daily, 
and  from  two  to  four  ounces  of  meat.  The 
result  was  the  prisoners  died  in  large  num 
bers,  occasioned,  without  doubt,  in  many 
cases,  by  starvation  and  the  horrible  treat 
ment  they  received. 

I  heard  rebel  officers  approve  of  the  kind 
of  treatment  we  received;  they  said  it  was 
good  enough  for  us.  I  remember  Captain 
Wirz  saying,  on  the  1st  of  July,  "It  is  good 
enough  for  you;  I  wish  you'd  all  die."  The 
location  of  the  carnp  at  Andersonville,  and 
the  arrangements  to  which  the  prisoners  were 
subjected,  seemed  to  show  that  the  Confed 
erate  authorities  intended  the  infliction  of  all 
possible  suffering,  short  of  putting  the  men 
to  death.  At  Milieu  it  was  somewhat  better. 

A  pack  of  blood-hounds  was  kept  at  An 
dersonville,  and  I  heard  some  of  the  men 
who  went  after  them  say  that  some  of  the 
prisoners  who  had  escaped  were  pursued  and 
torn  by  the  blood-hounds. 

While  at  Andersonville  I  knew  Quarter 
master  Hume.  I  heard  him  say,  previous  to 
the  election,  that  if  Mr.  Lincoln  were  re- 
elected,  he  would  not  live  to  be  inaugurated. 
He  said  that  a  party  North  would  attend  to 
him,  and  to  Mr.  Seward  also.  I  also  heard  a 
lieutenant,  who  was  in  charge  of  the  guard, 
say  something  to  the  same  effect. 


MINING  OF   LIBBY   PRISON. 

LIEUTENANT  REUBEN   BARTLEY. 
For  the  Prosecution. — May  22. 

I  have  been  in  the  United  States  service 
since  1862,  and  since  August  the  3d  have  been 
in  the  signal  corps.  I  was  confined  in  Libby 
Prison  from  the  3d  of  March  to  the  16th  of 
July,  1864,  and  at  other  prisons  until  the  10th 
of  December,  1864. 

On  being  taken  to  Libby,  we  were  informed, 
when  taken  into  the  hall,  that  the  place  had 
been  mined.  The  next  morning  we  were  taken 
into  a  dungeon  in  the  cellar  part  of  the  build 
ing.  In  going  to  the  door  of  the  dungeon, 
we  had  to  go  round  a.  place  where  there  was 
fresh  dirt  in  the  center  of  the  cellar.  The 
guard  would  allow  no  person  to  pass  over  it 
or  near  it.  On  inquiring  why,  we  were  told 
that  that  was  the  place  where  the  torpedo 
had  been  placed.  It  remained  there  while 
we  were  in  the  dungeon,  and  for  some  time 
after  we  were  taken  up  stairs. 

I  learned  also  from  the  officers  who  accom 


panied  and  had  charge  of  us  that  the  torpedo 
was  buried  there.  It  was  always  spoken  of 
as  the  torpedo.  The  place  that  had  been  dug 
out  was  about  six  feet  in  diameter.  The 
_round  was  a  little  raised,  as  if  the  dirt  had 
been  dug  out  and  put  back  again.  It  was 
directly  under  the  center  of  the  prison.  Rebel 
officers  and  others  told  us  that  the  prison  had 
been  mined  on  account  of  Colonel  Dahl- 
gren's  raid,  and  that  if  we  succeeded  in  get 
ting  into  the  city,  they  would  blow  up  ihe 
prisoners  rather  than  liberate  them. 

ERASTUS  W.  Ross. 
For  the  Prosecution. — May  25. 

I  was  in  the  service  of  the  rebel  Govern 
ment;  I  was  conscripted  and  detailed  as  a 
clerk  at  the  Libby  Prison,  and  never  served 
in  the  army. 

In  March,  1864,  General  Kilpatrick  was 
making  a  raid  in  the  direction  of  Richmond. 
About  that  time  the  prison  was  mined.  I 
saw  the  place  where  I  was  told  the  powder 
was  buried  under  the  prison;  it  was  in  the 
middle  of  the  building.  The  powder  was  put 
there  secretly  in  the  night;  I  never  saw  it, 
but  I  saw  the  fuse;  it  was  kept  in  the  office 
safe.  I  was  away  at  my  uncle's  the  night 
the  powder  was  placed  there,  and  was  told  of 
it  the  next  morning  by  one  of  the  colored 
men  at  the  prison.  There  were  two  sentinels 
near  the  place  to  prevent  any  person's 
approaching  it.  The  excavation  made  was 
about  the  size  of  a  barrel-head,  and  the  earth 
was  thrown  up  loosely  over  it.  Major  Tur 
ner,  the  commandant  of  the  prison,  had 
charge  of  the  fuse.  He  told  me  that  the 
powder  was  there,  and  that  the  fuse  was  to 
set  it  off;  that  it  was  put  there  for  the  secu 
rity  of  the  prisoners,  and  if  the  army  got  in, 
it  was  to  be  set  off  for  the  purpose  of  blowing 
up  the  prison  and  the  prisoners. 

The  powder  was  secretly  taken  out  in 
May,  and  the  whole  building  was  then  shut 
up.  The  prisoners  had  all  been  sent  to 
Macon,  Georgia. 

I  suppose  the  powder  was  placed  there  by 
the  authority  of  General  Winder,  or  the 
Secretary  of  War.  Major  Turner  said  he 
was  acting  under  the  authority  of  the  rebel 
War  Department,  though  I  never  saw  any 
written  orders  about  it, 

JOHN  LATOUCHE. 
For  the  Prosecution. — May  25. 
I  was  First  Lieutenant  in  Company  B, 
Twenty-fifth  Virginia  Battalion,  C.  S.  A.  I 
was  detailed  to  post  duty  in  Richmond,  to 
regulate  the  details  of  the  guards  of  the 
military  prisons  there,  and  in  March,  1864, 
I  was"  on  duty  at  Libby  Prison.  Major 
Turner,  the  keeper  of  the  prison,  told  me  he 
was  going  to  see  General  Winder  about  the 
guard.  On  his  return  he  told  me  that  General 
Winder  himself  had  been  to  see  the  Secretary 


THE   BEN.    WOOD    DRAFT. 


63 


Of    War,    and    that    they    were    going    to   put|     [The  requisition,  having  been  read,  was  put  in  evidence.] 


powder  under  the  prison.  In  the  evening  of 
the  same  day,  the.  powder  was  brought. 
There  were  two  kegs,  of  about  twenty-five 
pounds  each,  and  a  box  which  contained,  I 
suppose,  about  as  much  as  the  two  kegs.  A 
hole  was  dug  in  the  center  of  the  middle 
basement,  and  the  powder  was  put  down 
there.  The  box,  when  put  in,  just  came 
level  with  the  ground,  and  the  place  was 


covered  over  with  gravel.  I  did  not  see  any 
fuse  to  it  then.  I  placed  a  sentry  over  this 
powder,  so  that  no  accident  might  occur; 
and  the  next  day  Major  Turner,  who  had 
charge  of  the  fuse,  sh'owed  it  to  us  in  his 
office;  he  showed  it  to  everybody  there.  It 
was  a  long  fuse,  made  of  gutta-percha;  such 
a  one  as  I  had  never  seen  before. 

In  May,  I  think  it  was,  Major  Turner 
went  South,  and  all  the  prisoners  were  sent 
out  of  the  Libby  building  proper  to  the 
South;  and  General  Winder  sent  a  note 
down  to  the  office,  with  directions  to  take  up 
the  powder  as  privately  or  as  secretly  as 
possible;  I  forget  the  exact  word.  The  note 
was  delivered  into  my  hands  for  the  in 
spector  of  the  prison,  to  whom  I  either  gave 
or  sent  it,  I  afterward  heard  Major  Turner 
say  that,  in  the  event  of  the  raiders  coming 
into  Richmond,  lie  would  have  blown  up  the 
place.  I  understood  him  to  say  that  those 
were  his  orders. 


THE  BEN.  WOOD  DRAFT. 

DANIEL  S.  EASTWOOD. 
For  the  Prosecution. — June  16. 

I  am  assistant  manager  of  the  Montreal 
branch  of  the  Ontario  Bank,  Canada.  I 
was  officially  acquainted  with  Jacob  Thomp 
son,  formerly  of  Mississippi,  who  has  for 
some  time  been  sojourning  in  Canada,  and 
have  knowledge  of  his  account  with  our 
bank,  a  copy  of  which  was  presented  to  this 
Commission  by  Mr.  Campbell,  our  assistant 
teller. 

The  moneys  to  Mr.  Thompson's  credit 
accrued  from  the  negotiation  of  bills  of 
exchange,  drawn  by  the  Secretary  of  the 
Treasury  of  the  so-called  Confederate  States, 
on  Frazier,  Trenholm  &  Co.,  of  Liverpool. 
They  were  understood  to  be  the  financial 
agents  of  the  Confederate  States  at  Liverpool, 
and  the  face  of  the  bills,  I  believe,  bore  that 
inscription.  Among  the  dispositions  made 
from  that  fund,  by  Jacob  Thompson,  was 
$25,000,  paid  in  accordance  with  the  follow 
ing  requisition : 

4320.  MONTREAL,  Aug.  10th,  1864. 

Wanted  from  the  Ontario  Bank,  3  days  eight,     ' 

On  N.  York, 

Favor  Benjamin  Wood,  Esq.. 
$25,000 

For current  funds. 


Deliv.  60  p.  c. 
Ex.  15,000. 


10,000 


A.M. 


The  "  $10,000"  underneath  the  $25,000, 
is  the  purchase  money  in  gold  of  $25,000 
worth  of  United  States  funds. 

At  Mr.  Thompson's  request,  the  name  of 
Benjamin  Wood  was  erased,  (the  pen  just 
being  struck  through  it,)  and  my  name,  aa 
an  officer  of  the  bank,  written  immediately 
beneath  it,  that  the  draft  might  be  negotiable 
without  putting  any  other  name  to  it. 

I  have  in  my  hand,  it  having  been  ob 
tained  from  the  cashier  of  the  City  Bank  in 
New  York,  the  original  draft  for  the  $25,000, 
for  which  that  requisition  was  made  by  Mr. 
Thompson,  in  the  name  of  Benjamin  Wood. 
It  reads : 

$25,000.  THE  ONTARIO  BANK.  No.  4,329. 

MONTREAL,  IOTH  AUGUST,  1864. 

At  three  days'  sight,  please  pay  to  the  order  of  T>.  8. 
Eastwood,  in  current  funds,  twenty-five  thousand  dollars, 


value  received,  and  charge  the  same 
branch. 


to  account  of  this 


!U.  S.  INTER.  REV.  ) 
2  cts.  V 

BANK  CHECK.       J 


To  the  Cashier,        H.Y.  STANUS, 
City  Bank,  Manager 

New  York. 


INDORSED : 

Pay  to  the  Hon.  Benj.  Wood,  Esq., 
or  Order. 

D.  S.  EASTWOOD, 
B.  WOOD. 

[The  draft,  having  been  read,  was  put  in  evidence.] 

I  found  this  draft  in  the  hands  of  the 
payee  of  the  City  Bank,  in  New  York,  and 
I  understand  from  the  cashier  it  has  been 
paid. 

Mr.  Thompson  was  frequently  in  the 
habit  of  drawing  moneys  in  the  name  of  an 
officer  of  the  bank,  so  as  to  conceal  the 
person  for  whom  it  was  really  intended.  A 
good  deal  of  Thompson's  exchange  was 
drawn  in  that  way,  so  that  there  is  no  indi- 
ation,  except  from  the  bank  or  the  locality 
on  which  the  bill  was  drawn,  to  show  where 
ise  was  to  be  made  of  the  funds.  Large 
amounts  were  drawn  for,  at  his  instance,  on 
:he  banks  of  New  York,  but  we  were  not 
icquainted  with  the  use  they  were  put  to. 

The  Benjamin  Wood,  to  whom  the  draft 
»vas  made  payable,  is,  I  believe,  the  member 
of  Congress,  and  the  owner  of  the  New  York 
News. 

[Jacob  Thompson's  bank  account,  already  in  evidence, 
was  handed  to  the  witness.] 

This  is  a  copy  of  Jacob  Thompson's 
)anking  account  with  us,  as  testified  to  by 
Robert  Anson  Campbell.  I  see  in  the  ac- 
;ount,  entries  of  funds  that  were  used  for 
he  purpose  of  exchange  on  New  York  and 
ilso  on  London.  The  item,  $180,000,  on  the 
>th  of  April,  1865,  was  issued  in  deposit 
•eceipts,  which  may  be  used  anywhere. 

John  Wilkes  Booth  purchased  a  bill  of 
•xchange  at  our  bank,  about  the  beginning 
>f  October,  and  made  a  deposit  at  the  same 
ime,  which  remains  undrawn  to  this  day. 
;  do  not  know  of  his  having  been  in  our 
>ank  but  once.  John  II.  Surratt's  name  I 
never  heard  mentioned. 


64 


THE    CONSPIRACY    TRIAL. 


Cross-examined  by  MR.  AIKEN. 

I  do  not  remember  any  drafts  cashed  at 
our  bank  in  favor  of  James  Watson  Wallace, 
Richard  Montgomery,  or  James  B.  Merritt. 
I  have  no  recollection  of  the  names. 

GEORGE  WILKES. 

For  the  Prosecution. — June  16. 

I  am  acquainted  with  Benjamin  Wood  of 
New  York,  and  am  familiar  with  his  hand 
writing. 

[The  $25,000  draft  was  here  handed  to  the  witness.] 

The  signature  at  the  back  of  that  bill  of 
exchange  I  should  take  to  be  his.  At  the 
date  of  this  bill  Benjamin  Wood  was  a  mem 
ber  of  Congress  of  the  United  States.  He 
was  editor  and  proprietor  of  the  New  York 
News;  so  he  told  me  himself  The  paper, 


1  have  heard,  has  been  recently  managed 
by  John  Mitchell,  late  editor  or  assistant 
editor  of  the  Richmond  Examiner  and  the 
Richmond  Enquirer. 

ABRAM  D.  RUSSEL. 
For  the  Prosecution. — June  16. 

I  am  City  Judge  for  the  City  of  New  York, 
judge  of  the  highest  criminal  court  in  the 
State.  I  am  acquainted  with  Benjamin 
Wood  of  the  City  of  New  York,  and  also 
with  his  handwriting. 

[The  bill  of  exchange  was  here  handed  to  the  witness.] 

The  indorsement  on  this  bill  of  exchange 
is  in  the  handwriting  of  Benjamin  Wood.  I 
have  no  doubt  it  is  his.  He  was  at  that  time 
member  of  Congress  of  the  United  States  and 
editor  and  proprietor  of  the  New  York  News. 


DEFENSE. 


TESTIMONY  TO  IMPEACH  H.   VON 
STEINACKER,  MAY  30. 

[EDWARD  JOHNSON  was  called  as  a  witness  for  the  de 
fense  on  the  part  of  Mary  E.  Surratt.  On  appearing  on 
the  stand,  General  HOWE  said:] 

Mr.  President:  It  is  well  known  to  me, 
and  to  very  many  of  the  officers  of  the  army, 
that  Edward  Johnson,  the  person  who  is  now 
introduced  as  a  witness,  was  educated  at  the 
National  Military  Academy  at  the  Govern 
ment  expense,  and  that,  since  that  time,  for 
years  he  held  a  commission  in  the  army  of  the 
United  States.  It  is  well  known  in  the  army 
that  it  is  a  condition  precedent  to  receiving 
a  commission,  that  the  officer  shall  take  the 
oath  of  allegiance  and  fidelity  to  the  Gov 
ernment.  In  1861  it  became  my  duty  as 
an  officer  to  fire  upon  a  rebel  party,  of 
which  this  man  was  a  member,  and  that 
party  fired  upon,  struck  down,  and  killed 
loyal  men  that  were  in  the  service  of  the 
Government.  Since  that  time,  it  is  notori 
ous  to  all  the  officers  of  the  army  that  the 
man  who  is  introduced  here  as  a  witness, 
has  openly  borne  arms  against  the  United 
States,  except  when  he  has  been  a  prisoner 
in  the  hands  of  the  Government.  He  is 
brought  here  now  as  a  witness  to  testify  be 
fore  this  Commission,  and  he  comes  with 
his  hands  red  with  the  blood  of  his  loyal 
countrymen,  shed  by  him  or  by  his  assist 
ance,  in  violation  of  his  solemn  oath  as  a 
man,  and  his  faith  as  an  officer.  I  submit 
to  this  Commission  that  he  stands  in  the  eye 
of  the  law  as  an  incompetent  witness,  because 
he  is  notoriously  infamous.  To  offer  as  a 


witness  a  man  of  this  character,  who  has 
openly  violated  the  obligation  of  his  oath, 
and  his  faith  as  an  officer,  and  to  adminis 
ter  the  oath  to  him  and  present  his  testimony, 
is  but  an  insult  to  the  Commission,  and  an 
outrage  upon  the  administration  of  justice. 
I  move,  therefore,  that  this  man,  Ed\vard 
Johnson,  be  ejected  from  the  Court  as  an 
incompetent  witness  on  account  of  his  no 
torious  infamy,  on  the  grounds  I  have 
stated. 

General  EKIX.  I  rise,  sir,  to  second  the 
motion,  and  I  am  glad  the  question  is  now 
presented  to  the  Commission.  I  regard  the 
gentleman  clearly  incompetent  as  a  witness. 
That  one  who  has  been  educated,  nourished, 
and  protected  by  the  Government,  and,  in 
direct  violation  of  his  oath,  has  taken  up 
arms  against  the  Government,  should  present 
himself  as  a  witness  before  this  Commission, 
I  regard  as  the  hight  of  impertinence,  and 
I  trust,  therefore,  that  the  motion  will  be 
adopted  without  a  moment's  hesitation. 

Mr.  AIKEN.  I  was  not  aware  that  the  fact 
of  a  person's  having  borne  arms  against  the 
United  States  disqualified  him  from  becom 
ing  a  witness  in  a  court  of  justice  ;  and,  there 
fore,  it  can  not  be  charged  upon  me,  that  I 
designed  any  insult  to  the  Commission  in  in 
troducing  General  Johnson  as  a  witness 
here.  It  will  be  recollected  that  Mr.  Jett, 
who  has  also  borne  aims  against  tLe  Gov 
ernment,  was  introduced  here  as  an  impor 
tant  witness  by  the  prosecution;  and  he,  ac 
cording  to  his  own  statement,  had  never 
taken  the  oath  of  allegiance,  and  his  testi 
mony,  at  that  time,  was  not  ejected  to. 


TESTIMONY  TO  IMPEACH  H.  VON  STEINACKER. 


65 


General  KAUTZ.  This  is  not  a  volunteer 
witness,  is  he  ? 

Mr.  A  IK  EN.     No,  sir. 

The  JUDGE  ADVOCATE.  If  it  please  the 
Court,  the  rule  of  law  on  this  point  is,  that 
before  a  witness  can  be  renderd  so  infamous 
as  to  become  absolutely  incompetent  to  tes 
tify,  he  must  have  been  convicted  by  a  judi 
cial  proceeding,  and  the  record  of  his  convic 
tion  must  be  presented  as  a  basis  of  his 
rejection.  All  evidences  of  his  guilt  that 
fall  short  of  that  conviction  affect  only  his 
credibility.  This  Court  can  discredit  him 
just  as  far  as  they  please  upon  that  ground; 
but  I  do  not  think  the  rule  of  law,  as  now 
understood,  would  authorize  the  Court  to  de 
clare  him  an  incompetent  witness,  and  inca 
pable  of  testifying,  however  unworthy  of 
credit  he  may  be. 

General  WALLACE.  For  the  sake  of  the 
character  of  this  investigation,  for  the  sake 
of  public  justice — not  for  the  sake  of  the 
person  introduced  as  a  witness,  but  for  the 
persons  who  are  at  the  bar  on  trial — I  ask 
the  General  who  makes  the  motion  to  with 
draw  it. 

General  HOWE.  On  the  statement  of  the 
Judge  Advocate  General,  that  this  witness  is 
technically  and  legally  a  competent  witness, 
[  withdraw  the  objection. 

Examined  by  MR.  AIKEN. 

[The  witness,  being  duly  sworn  by  the  Judge  Advocate, 
testified  as  follows:] 

I  am,  at  present,  a  United  States  prisoner 
of  war,  confined  at  Fort  Warren,  Boston 
Harbor.  1  was  captured  at  Nashville  about 
the  15th  of  December  last.  Since  February, 
1863,  I  have  been  a  Major-General  in  the 
Confederate  States  army. 

I  am  acquainted  with  the  man  who  went 
by  the  name  of  Henry  Von  Steinacker.  He 
was  a  private  on  engineer  duty;  but  was  not 
an  officer  either  of  the  engineers,  the  staff,  or 
of  the  line.  He  belonged  to  the  Second  Vir 
ginia  Infantry,  of  the  Stonewall  Brigade, 
which  was  one  of  the  brigades  of  my  divi 
sion.  In  the  month  of  May,  1863,  a  man 
accosted  me  in  Richmond,  on  the  Capitol 
Square,  by  my  rank  and  name,  and  with  the 
rank  I  had  borne  in  the  United  States  army, 
as  Major  Johnson;  he  told  me  he  had  served 
under  me  as  a  private,  and  applied  to  me 
for  a  position  in  the  engineer  corps.  He 
told  me  that  he  was  a  Prussian  by  birth, 
and  an  engineer  by  education.  It  was  not 
in  my  power  to  give  him  a  position,  and  he 
left  me  that  evening.  He  afterward  made 
a  second  application  to  me  for  a  position. 
I  was  then  ordered  off  to  my  division  at 
Fredericksburg,  and  in  about  a  week  after 
my  arrival  there  this  man  appeared  in  my 
camp  again,  and  made  application  for  a  po 
sition  in  the  engineer  corps,  or  on  my  staff. 
I  told  him  I  could  not  give  him  a  position 


in  either;  but  if  he  would  enlist  himself  as 
a  private,  and  if  he  was  what  he  represented 
himself,  an  engineer  and  draftsman,  I  would 
put  him  on  duty,  as  a  private,  under  an  en 
gineer  officer  of  my  staff.  Under  these  con 
ditions  he  enlisted.  I  attached  him  to  head 
quarters,  and  assigned  him  to  special  duty 
under  an  engineer  officer,  Captain  Oscar 
Hendricks,  with  whom  he  acted  as  drafts 
man  and  assistant  from  that  time  until  he 
left. 

Q.  Was  he  the  subject  of  a  court-martial 
at  any  time  in  your  camp;  and,  if  so,  for 
what? 

Judge  Advocate  BINGHAM.  I  object  to  the 
question.  The  record  of  such  a  court-mar 
tial  would  be  the  only  competent  evidence  of 
conviction,  and  if  the  record  were  here,  it 
would  not  impart  any  verity.  I  do  not  think 
there  were  any  courts  in  Virginia  in  those 
days  that  could  legally  try  a  dog. 

Mr.  AIKEN.  Under  the  circumstances,  pa- 
rol  testimony  of  the  fact  is  the  best  that  can 
be  offered,  and  therefore  I  presume  it  will 
not  be  seriously  objected  to. 

[  The  Commission  sustained  the  objection.  ] 

Soon  after  the  battle  of  Gettysburg,  our 
encampment  was  near  Orange  Court-House, 
Orange  County,  Virginia.  I  know  nothing 
of,  and  never  heard  of,  any  secret  meeting 
of  the  officers  of  the  Stonewall  Brigade,  at 
the  camp  of  the  Second  Virginia  Regiment. 
I  never  knew  of  any  plans  discussed  for  the 
assassination  of  the  President  of  the  United 
States,  and  I  never  heard  his  assassination 
alluded  to  by  any  officer  of  my  division  as 
an  object  to  be  desired ;  nor  did  I  ever  hear, 
while  in  the  South,  of  a  secret  association 
called  the  Knights  of  the  Golden  Circle,  or 
Sons  of  Liberty,  nor  have  I  ever  known  of 
any  one  belonging  to  them,  or  reputed  to 
belong  to  them. 

I  never  saw  John  Wilkes  Booth,  and  never 
heard  of  him  till  after  the  assassination  of 
the  President. 

I  do  not  know  that  H.  Von  Steinacker 
was  a  member  of  General  Blenker's  staff, 
though  he  told  me  he  was;  but  he  also  told 
me  that  he  was  a  deserter  from  the  United 
States  service,  or  that  he  attempted  to  desert 
and  had  been  apprehended. 

Cross-examined  by  ASSISTANT  J  UDGE  ADVOCATE 
BINGHAM. 

I  graduated  at  West  Point  Military  Acad 
emy  in  1838,  and  was  in  the  United  States 
service  till  the  breaking  out  of  the  rebellion. 
My  rank  at  that  time  was  that  of  Captain 
and  Brevet  Major  of  the  Sixth  Infantry, 
United  States  army.  I  tendered  my  resig 
nation  in  May,  I  think,  and  received  notice 
of  its  acceptance  in  June,  1861.  I  then  went 
to  my  home  in  Virginia,  and  in  a  few  weeks 
I  entered  the  Confederate  States  service,  in 
which  I  have  since  remained. 


66 


THE    CONSPIRACY   TRIAL. 


OSCAR  HEINRICHS. 

For  the   accused,  Mary  E.  Surratt. — May  30. 
Examined  by  MR.  AIKEN. 

I  served  as  engineer  officer  on  the  staff  of 
General  Edward  Johnson,  and  on  the  staff 
of  other  general  officers  of  the  Confederate 
States  army. 

1  am  acquainted  with  Henry  Von  Stein- 
acker ;  he  was  detailed  to  me  as  draftsman 
shortly  after  General  Johnson  took  command 
of  my  divison,  and  I  employed  him  as  such. 
He  had  neither  the  rank  nor  the  pay  of  an 
engineer  officer. 

1  am  not  acquainted  with  J.  Wilkes  Booth, 
the  actor.  I  never  saw  a  person  calling  him 
self  by  that  name  in  our  camp;  nor  did  any 
secret  meeting  of  officers  ever,  to  my  knowl 
edge,  take  place  in  that  camp,  where  plans 
for  the  assassination  of  President  Lincoln 
were  discussed. 

H.  K.  DOUGLAS. 

For  the  accused,  Mary  E.  Surratt. —  May  30. 
Examined  by  MR.  AIKEN. 

I  have  held  several  commissions  in  the 
Confederate  States  service;  my  last  was  that 
of  Major  and  Assistant  Adjutant-General. 
During  the  last  campaign  I  served  on  the 
staff  of  six  general  offiers — Generals  Edward 
Johnson,  Early,  Gordon,  Pegram,  Walker, 
and  Ramsey. 

I  know  a  man  named  Von  Steinacker;  he 
was  in  the  Second  Virginia  Infantry,  the 
Stonewall  Brigade.  At  the  battle  of  Gettys 
burg  I  was  wounded  and  taken  prisoner,  and 
remained  prisoner  for  nine  months.  I  did 
not  see  Steinacker  in  camp  after  I  returned 
to  duty,  but  I  got  a  letter  from  him. 

I  do  not  know  of  any  secret  meeting  being 
held  in  our  camp  for  the  discussion  of  plans 
for  the  assassination  of  the  President  of  the 
United  States. 

I  wish  to  say  of  the  officers  of  that  brigade, 
that  their  integrity  as  men,  and  their  gal 
lantry  as  soldiers,"  would  forbid  them  from 
being  implicated  in  any  such  plot  as  the  as 
sassination  of  Mr.  Lincoln ;  and  in  their  be 
half  I  desire  to  say,  that  I  do  not  believe  they 
knew  any  thing  about  it,  or  in  the  least  de 
gree  sympathized  with  a.0  unrighteous  an 
act, 

Steinacker  acknowledged  to  me,  on  several 
occasions,  that  he  was  a  deserter  from  the 
Northern  army.  I  have  never  heard  of  the 
existence  of  any  secret  treasonable  societies, 
organized  for  the  assassination  of  the  Presi 
dent  of  the  United  States.  I  never  was  a 
member  of  the  Knights  of  the  Golden  Circle 
or  Sons  of  Liberty,  nor  do  I  know  of  any  of 
the  General's  titaff  being  connected  with  that 
organization.  I  never  heard  it  declared  in 
Richmond  that  President  Lincoln  ought  to 
be  assassinated. 


Mr.  EWING.  I  move  that  the  cipher  letter 
introduced  in  evidence,  June  5th,  and  its 
translation,  be  rejected  as  testimony,  and  that 
it  be  so  entered  upon  the  record.  My  reason 
is  a  twofold  one.  In  the  first  place,  I  really 
believe  the  letter  to  be  fictitious,  and  to  bear 
upon  its  face  the  evidence  that  it  is  so.  In 
the  second  place,  it  is  testimony  that  is  wholly 
inadmissible  under  the  plainest,  rules  of  evi 
dence.  It  is  not  signed  ;  the  handwriting  was 
not  proved  ;  it  was  in  cipher;  it  was  not .shown 
at  all  that  it  was  traced  to  anybody  proved 
or  charged  to  be  connected  with  this  con 
spiracy,  or  that  it  was  in  the  possession  of 
anybody  shown  or  charged  to  be  connected 
with  this  conspiracy.  The  rule  in  regard  to 
declarations  in  cases  of  conspiracy  is,  that 
they  may  be  admitted  when  they  are  declara 
tions  of  one  of  the  conspirators.  This  is  not 
shown  to  be  the  declaration  of  one  of  the  con 
spirators  ;  and  when  the  declarations  are  those 
of  a  conspirator,  they  must  accompany  some 
act  of  the  conspiracy,  being  not  merely  a 
declaration  of  what  had  been  done,  or  was 
going  to  be  done,  but  some  declaration  con 
nected  with  an  act  done  in  furtherance  of  the 
common  design.  The  rule  is  very  succinctly 
stated  in  Benet  on  Military  Law  and  Courts- 
Martial,  page  289: 

"In  like  manner,  consultations  in  further 
ance  of  a  conspiracy  are  receivable  in  evi 
dence,  as  also  letters,  or  drafts  of  answers  to 
letters,  and  other  papers  found  in  the  pos 
session  of  co  conspirators,  and  which  the  jury 
may  not  unreasonably  conclude  were  written 
in  prosecution  of  a  common  purpose,  to  which 
the  prisoner  was  a  party.  For  the  same 
reason,  declarations  or  writings  explanatory 
of  the  nature  of  a  common  object,  in  which 
the  prisoner  is  engaged,  together  with  others, 
are  receivable  in  evidence,  provided  they 
accompany  acts  done  in  the  prosecution  of 
such  an  object,  arising  naturally  out  of  these 
acts,  and  not  being  in  the  nature  of  a  subse 
quent  statement  or  confession  of  them.  But 
where  words  or  writings  are  not  acts  in  them 
selves,  nor  part  of  the  res  gcstce,  but  a  mere  re 
lation  or  narrative  of  some  part  of  the  trans 
action,  or  as  to  the  share  which  other  persons 
have  had  in  the  execution  of  a  common  de 
sign,  the  evidence  is  not  within  the  principle 
above  mentioned;  it  altogether  depends  on 
the  credit  of  the  narrator,  who  is  not  before 
the  court,  and  therefore  it  can  not  be  received." 

In  this  case,  it  is  a  declaration  not  only  of 
some  person  who  is  not  shown  to  be  connected 
with  the  conspiracy,  but  it  is  a  declaration  of 
some  person  whose  existence  nobody  knows 
any  thing  of — a  nameless  man.  The  letter  is 
as  completely  unconnected  with  the  subject  of 
investigation  as  the  loosest  newspaper  para 
graph  that  could  be  picked  up  anywhere. 

Assistant  Judge  Advocate  BINGHAM.  If  the 
Court  please,  there  is  a  great  deal  in  what  the 
gentleman  says  that  exactly  states  the  law  of 
conspiracy;  but  there  is  one  thing  I  beg  him 
to  notice,  that  while  that  limitation  which  he 


DISCUSSION    ON   THE    MOTION    TO    REJECT    CIPHER   LETTER. 


67 


has  named  obtains  in  regard  to  third  persons, 
there  are  two  principles  of  the  law  touching 
conspiracy  which  are  just  about  as  old  as  the 
crime  itself,  and  as  old  as  the  common  law, 
which  itself  is  the  growth  of  centuries — 
namely,  that  every  declaration  made,  whether 
it  is  in  the  formation  of  a  conspiracy,  in  the 
prosecution  of  a  conspiracy,  before  it  is  shown 
to  have  been  organized,  or  after  it  is  shown 
to  be  completed,  is  always  evidence  against 
the  party  himself. 

There  is  an  allegation  in  the  charge  and 
specification  that  this  conspiracy  was  entered 
into  with  the  parties  named,  and  with  others 
unknown,  which  is  also  a  mode  of  proceed 
ing  known  to  the  administration  of  justice 
wherever  the  common  law  obtains.  There  is 
a  rule  in  connection  with  this  that  can  not  be 
challenged,  and  that  is  that  the  declarations 
of  parties  who  are  neither  indicted  nor  on 
trial,  are  admissible  in  the  trial  of  those  who 
are  indicted  and  upon  trial  touching  the  con 
spiracy.  In  the  first  place,  you  find  it  proved, 
beyond  any  question  of  doubt,  that  Booth, 
during  the"  month  of  October,  1864,  was  in 
Canada,  plotting  this  assassination  with  the 
declared  agents  of  this  revolt.  You  find  that 
about  the  14th  of  November,  1864,  after  he 
had  so  plotted  this  assassination  with  those 
who  had  weighed  him  out  the  price  of  blood, 
he  is  on  his  way  to  Washington  City  for  the 
purpose  of  hiring  his  assistants;  he  is  in  the 
City  of  New  York;  he  is  in  conversation  with 
one  of  his  co-conspirators,  and,  in  my  judg 
ment,  with  one  of  them  who  is  now  within 
the  hearing  of  my  voice. 

In  that  conversation  they  disclosed  the  fact 
that  they  are  conspirators,  as  detailed  by  the 
witness  who  was  present,  Mrs.  Hudspeth. 
Upon  one  of  them  the  lot  has  fallen  to  go  to 
Washington,  to  carry  out  the  conspiracy,  to 
hire  the  assassins — to  go  to  Washington  to 
strike  the  murderous  blow  in  aid  of  this  re 
bellion  ;  and  what  of  the  other?  The  other 
has  been  ordered,  according  to  the  testimony, 
to  go  to  Newbern,  North  Carolina — Newbern, 
which  became  the  doomed  city  afterward 
among  these  conspirators  for  the  importa 
tion  of  pestilence.  After  the  introduction  of 
proof  of  this  sort  against  these  unknown 
conspirators,  who  are  numbered  by  fifties 
and  hundreds,  as  Booth  himself  testified 
when  he  was  trying  to  hire  with  his  money 
a  man  who  could  not  be  hired  to  do  murder, 
Mr.  Chester — after  such  facts  as  these  are 
proved,  in  the  very  vicinity  of  Newbern  this 
infernal  thing  is  found  floating  as  a  waif  on 
the  waters,  bearing  witness  against  these 
villains.  Although  you  can  not  prove  the 
writer  of  it,  I  say  it  is  admissible  in  evidence. 
It  is  alleged  that  there  are  conspirators  here 
unknown.  There  are  facts  here  to  prove 
that  one  of  them  was  to  go  to  Newbern. 
The  letter  is  found  in  the  vicinity  of  New 
bern,  in  North  Carolina,  at  the  dock  in 
Morehead  City.  The  foundation  has  been 
laid  for  the  introduction  of  it. 


Allow  me  to  say  one  other  word  in  this 
connection.  There  are,  I  know,  some  rules 
of  law  that  draw  very  harshly  on  conspira 
tors  that  are  engaged  in  crime.  It  may  seem 
very  hard  that  a  man  is  to  be  affected  in  the 
remotest  degree  by  a  letter  written  by  an 
other  who  is  not  upon  his  trial,  or  a  letter 
that  has  never  been  delivered,  which  could 
only  speak  from  the  time  of  its  delivery; 
and  yet  the  gentleman  knows  very  well  that 
upon  principle  it  has  been  settled  that  a  let 
ter  written  and  never  delivered  is  admissible 
upon  the  trial  of  conspirators. 

Mr.  EWING.  Written  by  a  co-conspirator. 

Assistant  Judge  Advocate  BINGHAM.  Of 
course.  But  the  fact  that  it  was  written  by 
a  co-conspirator  is  patent  on  its  face,  and 
gathered  from  the  other  facts  in  proof  in  the 
case.  The  point  about  it  is  that  he  is  an 
unknown  conspirator.  Suppose  it  had  been 
found  in  possession  of  Booth,  addressed  to 
him  through  the  post-office,  instead  of  being 
sent  by  hand,  as  the  cipher  letter  shows  they 
must  do,  because  the  detectives  are  on  their 
track;  suppose  it  had  been  found  in  the  pos 
session  of  Booth,  will  any  man  say  that  it 
would  not  be  admissible  in  evidence  against 
him  and  everybody  else  who  conspired  with 
him  in  this  infernal  plot?  What  difference 
does  it  make  that  it  had  not  reached  him,  or 
the  other  hired  assassin,  that  was  on  the 
track  of  Sherman,  to  creep  into  his  tent  and 
murder  him,  as  they  crept  into  the  tent  of 
the  Commander-in-chief  of  your  army  and 
murdered  him.  I  say  it  is  evidence. 

Mr.  Cox.  If  the  Court  will  allow  me,  I  de 
sire  to  submit  a.  word  in  support  of  the  mo 
tion  made  by  General  Ewing.  When  it  was 
announced  that  a  cipher  letter  was  about  to 
be  offered  in  evidence,  the  counsel  for  the  de 
fense  took  it  for  granted  that  it  belonged  to 
that  general  class  of  evidence  relating  to  the 
machinations  of  the  rebel  agents  in  Canada, 
which  had  been  generally  admitted  here 
without  objection.  The  counsel  for  the  de 
fense  have  had  no  objection  to  the  exposure 
of  those  machinations;  their  only  concern 
has  been  to  show  that  their  clients  were  not 
involved  in  them.  The  whole  of  the  evidence 
of  this  description  of  a  secret  character  here 
tofore  has  been  evidence  relating  to  the  con 
trivances  and  machinations  of  the  rebel 
agents  in  Canada,  either  on  their  own  re 
sponsibility,  or  in  connection  with  the  author 
ities  in  Richmond.  Therefore,  no  objection 
was  made  to  the  introduction  of  that  evi 
dence;  nor  was  it  perceived,  until  the  letter 
was  read  before  the  Court,  that  it  purported 
to  come  from  somebody  in  immediate  coiv 
nection  with  the  act  of  assassination  itself. 
Therefore  the  counsel  were  taken  by  surprise, 
and  allowed  the  letter  to  be  read  to  the  Court 
without  objection,  without  even  inspecting  it, 
as  they  had  a  right  to  do,  if  they  desired  to 
submit  objections  to  its  introduction  as  evi 
dence. 

The  rule  stated  by  the  learned  Judge  Ad- 


68 


THE    CONSPIRACY    TRIAL. 


vocate  is  undoubtedly  true,  in  general,  that 
the  declarations  of  conspirators  are  admissi 
ble  in  evidence  against  their  co-conspirators 
but  that  is  subject  to  this  limitation,  that  the 
conspiracy  must  first  be  established  between 
the  author  of  the  declaration,  whether  oral 
or  written,  and  the  party  accused.  That  con 
spiracy  being  first  proved  by  evidence  aliunde, 
by  other  proof  than  the  declaration  itself, 
then  the  declaration  may  be  offered  in  evi 
dence  to  show  the  scope  and  design  of  the 
conspiracy  ;  and  if  it  had  been  established 
that  this  letter  emanated  from  somebody  be 
tween  whom  and  any  one  of  the  accused  the 
conspiracy  had  been  established,  unquestion 
ably  it  would  have  been  evidence  against  the 
accused,  supposing  it  to  be  made  in  the  pros 
ecution  of  the  conspiracy.  But  there  has  not 
been  a  particle  of  proof  produced  to  the 
Court  showing  that  the  letter  did  emanate 
either  from  Booth,  or  any  one  of  his  associ 
ates.  The  logic  of  my  learned  friend  on  the 
other  side  seems  to  be  this:  It  is  sufficiently 
established,  at  least  by  prima  facie  evidence 
before  the  Court,  that  Booth  was  engaged  in 
a  conspiracy  with  some  unknown  persons; 
this  letter  comes  from  an  unknown  person ; 
ergo,  it  is  a  letter  from  somebody  connected 
with  Booth  in  this  conspiracy. 

Assistant  Judge  Advocate  BINGHAM.  Not 
all  the  logic. 

Mr.  Cox.  But,  as  far  as  it  goes,  it  seems  to 
be  the  logic  of  the  other  side.  He  says  the 
charge  is  that  these  accused  were  engaged  in 
a  conspiracy  with  somebody  unknown;  this 
letter  comes  from  somebody  unknown;  there 
fore  it  is  admissible  in  evidence.  That  is 
about  the  substance  of  it.  I  submit  to  the 
Court  that  this  is  chop-logic.  The  rule  of 
law  is  that  the  author  of  a  declaration  must 
first  be  shown,  and  when  a  letter  is  produced 
here,  and  read  in  evidence,  it  must  be  first 
shown  whose  the  handwriting  is;  that  it  is 
really  the  production  of  somebody  whose 
declarations,  oral  or  written,  are  evidence 
against  the  accused;  and  until  that  is  proved 
the  letter  is  clearly  inadmissible. 

If  the  Court  will  look  at  the  face  of  the 
letter,  although  that  is  a  matter  for  argu 
ment,  in  case  it  is  fairly  before  the  Court  as 
evidence,  I  think  the  Court  will  perceive 
that  it  does  bear  on  its  very  face  the  marks 
of  fabrication.  The  letter  is  picked  out  of 
the  water  at  Morehead  City,  no  more  blurred, 
I  think,  than  any  paper  on  this  table.  It 
looks  as  if  it  had  been  written  and  dropped 
in  the  water  immediately  before  it  was  found, 
for  the  very  purpose  of  being  picked  up 
by  the  Government  agents,  to  be  used  as 
evidence.  It  declares  that,  "Pet"  (who,  I 
suppose,  is  intended  to  mean  Booth)  "has 
done  his  work  well."  "We  had  a  large 
meeting  last  night"  (the  Friday  night  when 
these  conspirators  were  flying  from  the  city 
for  their  lives.)  "  I  was  in  Baltimore  yester 
day."  That  was  Friday.  "  Pet  had  not  got 
there."  Of  course  he  had  not  got  there  when 


the  work  of  conspiracy  was  to  be  done  that 
very  night,  Friday;  yet  this  letter  assumes 
that  he  had  done  the  work  before,  and  was 
to  get  there  "yesterday,"  Friday,  in  Balti 
more.  Every  thing  about  it  is  suspicious. 
That,  however,  is  a  matter  of  argument  to 
the  Court,  as  a  question  of  evidence,  when 
it  is  before  the  Court  as  evidence.  In  support 
of  the  motion  of  my  learned  friend,  1  submit 
that  the  letter  was  read  and  admitted  in 
evidence  by  surprise;  it  is  not  legitimate  evi 
dence,  and  therefore  should  be  so  entered 
upon  the  record. 

Assistant  Judge  Advocate  BIXGHAM.  I 
have  only  to  say  that  the  motion  of  the 
learned  counsel  will  come  more  fitly  when  he 
makes  his  final  argument.  It  is  competent 
for  him  to  say  then  to  the  Court,  "  You  are 
not  entitled  to  consider  this  evidence ;"  but  I 
object  to  commencing  the  argument  of  the 
case  in  the  middle  of  the  trial,  and  asking  the 
Court  to  decide  a  part  of  the  case  at  one  time, 
and  another  part  of  it  at  another.  That  is  a 
new  system  of  practice. 

In  regard  to  t-he  remarks  of  my  learned 
friend  who  has  just  spoken,  his  tongue  cer 
tainly  tripped,  and  he  forgot  himself,  when  he 
said  that,  in  cases  of  conspiracy,  written 
evidence  could  not  be  admitted  without  prov 
ing  the  handwriting.  I  asked  him,  and 
challenged  him,  to  produce  a  single  authority 
that  showed  any  such  limitation,  where  a 
paper  was  found  relating  to  the  conspiracy, 
no  matter  who  wrote  it.  Will  the  gentleman 
say  here  that  because  we  did  not  prove  who 
wrote  the  cipher  that  was  found  in  Booth's 
possession,  which  accords  exactly  with  the 
cipher  found  in  Davis's  or  Benjamin's  posses 
sion  at  Richmond,  it  is  not  evidence?  It  is 
no  matter  who  wrote  it;  he  had  it,  and  let 
him  account  for  his  possession  of  it,  and  let 
him  account  for  the  uses  he  was  making  of 
it.  This  letter  was  found  on  the  premises 
under  the  control  and  occupied  by  the  enemy, 
who  were  engaged  in  this  conspiracy.  The 
gentleman  said  that  "Pet"  is  referred  to  in 
the  letter.  He  is,  and  it  is  proved  that  "  Pet" 
is  the  name  by  which  Booth  was  known 
among  his  co-conspirators  in  Canada ;  it  is  so 
proved  by  Conover.  How  would  Conover 
know  any  thing  about  the  contents  of  this 
letter?  Who  has  proved  that  he  was  in 
North  Carolina  at  the  time  of  the  flight? 

The  letter  is  dated  Washington,  April  15th, 
which  is  the  day  after  the  murder,  and  the 
day  of  the  death  of  the  President  of  the 
United  States.  It  does  not  follow,  by  any 
means,  that  it  was  written  in  Washington; 
but  that  is  what  is  on  its  face.  Now,  let  us 
see  whether  there  is  any  thing  of  this  sup 
posed  contradiction  on  the  face  of  it. 

"I  am  happy  to  inform  you  that  Pet  has 
done  his  work  well.  He  is  safe,  and  Old 
Abe  is  in  hell." 

Is  there  any  contradiction  here  in  dates, 
or  time,  or  fact?  Did  not  Abraham  Lincoln 
die  on  the  morning  of  the  15th  of  April,  and 


DISCUSSION  ON  THE  MOTION  TO  REJECT  CIPHER  LETTER. 


69 


is  not   that  in    proof?     The  conclusions  of 
this   miserable    monster,    of  course,  are   not 
statements  of  facts;   but,  monster  as  he  is,  h 
knows   enough   to   state   the   fact,  which  h 
does   state,   that   "  Pet    has   done    his    worl 
well,"  after  their  method  of  well-doing,  an 
that  his  victim,  Abraham  Lincoln,  is  dead 
That  is  the  fact  that  he  states;  there  is  n 
contradiction  there.     "  Now,  sir,  all  eyes  are 
on  you."    Who?    "You."    "  You  must  brirtj 
Sherman.     Grant  is  in  the  hands  of  Old  Gra 
ere  this."     Who  in   America   knew  that,  ex 
cept  a  man  in  this  conspiracy,  on  the  15th  of 
April  ? 

Mr.  Cox.  We  do  not  know  that  it  wa* 
written  on  that  day. 

Assistant  Judge  Advocate  BINGHAM.  We 
are  taking  things  as  we  find  them.  "  Rec 
Shoes  showed  lack  of  nerve  in  Seward's 
case,  but  fell  back  in  good  order."  Who 
knew  in  what  sort  of  order  he  fell  back,  ex 
cept  a  co-conspirator?  We  know  who  Rec 
Shoes  was.  He  did  fall  back. 

Mr.  Cox.     When  was  the  letter  found? 
Assistant  Judge  Advocate  BINGHAM.     On 
the  second  day  of  May. 

Mr.  Cox.  Three  weeks  after. 
Assistant  Judge  Advocate  BINGHAM.  Yes 
but  the  gentleman  assumes  in  his  criticism 
that  it  bears  date  the  day  it  purports  to 
have  been  written.  "Johnson  must  come. 
Old  Crook  has  him  in  charge."  Who  knew 
on  the  15th  of  April  who  had  him  in  charge  ? 
"Mind  well  that  brother's  oath."  Who 
knew  then  about  the  oath  ?  It  is  all  abund 
antly  proved  here,  however.  "And  you  will 
have  no  difficulty.  All  will  be  safe,  and  en 
joy  the  fruit  of  our  labors."  That  is,  the 
price.  "We  had  a  large  meeting  last  night. 
All  were  bent  on  carrying  out  the  programme 
to  the  letter."  The  gentleman  says  there  is 
a  contradiction.  Wherefore?  "The  rails 
are  laid  for  safe  exit.  Old ,  always  be 
hind — missed  the  pop  at  City  Point.  I  say 
again,  the  lives  of  our  brave  officers,  and 
the  life  of  the  South,  depend  on  carrying 
this  programme  into  effect."  Which  was  the 
original  design.  "Number  2  will  give  you 
this.  When  you  write  sign  no  real  name. 
I  was  in  Baltimore  yesterday.  Pet  had  not 
got  there  yet."  The  gentleman  says  there 
is  a  contradiction.  Wherefore?  Was  not 
"yesterday"  until  midnight  at  least  of  the 
14th  of  April?  "I  was  in  Baltimore  yester 
day."  Assuming  that  he  was  in  Washing 
ton  on  the  15th,  he  was  in  Baltimore  the  day 


before  the  day  of  the  murder.  "Pet  had 
not  got  there  yet."  Where?  At  midnight 
yesterday,  under  cover  of  the  same  darkness 
which  he  sought  when  he  inflicted  the  mor 
tal  wound  upon  Abraham  Lincoln.  If  he 
had  got  the  benefit  of  the  trains,  everybody 
knew  he  would  have  been  there  "yesterday." 
Where  is  the  contradiction  ? 

I  submit  to  the  Court  that  this  is  no  time 
to  decide  the  effect  of  this  letter  upon  the 
case  or  upon  the  Court. 

Mr.  Cox.  The  argument  of  the  learned 
counsel  for  the  Government  is,  that  the 
handwriting  of  a  letter  need  not  be  proved 
when  it  is  found  in  the  custody  of  parties 
implicated  in  the  conspiracy.  That  I  may 
admit,  but  that  assumes  the  whole  question. 
The  letter  was  not  found  in  the  custody  of 
any  person.  It  was  found  floating  upon  the 
water,  and  non  constat  that  the  letter  may 
not  have  been  written  the  very  day  when  it 
was  found,  and  a  few  minutes  before  it  was 
found;  and  written  by  somebody  who  had 
possessed  himself  of  sufficient  knowledge  of 
the  facts  charged  against  the  conspirators 
to  enable  him  to  fabricate  a  letter  specious 
on  its  face,  and  appearing  to  have  some  bear 
ing  on  the  conspiracy  itself. 

Assistant  Judge  Advocate  BINGHAM.  Par 
don  me  for  saying  to  the  gentleman,  that 
while  his  statement  is  correctly  made  as  re- 
;ards  what  I  said,  I  did  also  say,  in  that 
onnection,  that  we  must  lay  a  foundation, 
and  show  that  it  had  been  in  the  custody 
of  one  of  the  conspirators.  I  think  we  have 
done  it  by  showing  that  "Pet"  was  the 
name  of  one  of  the  party;  by  showing  that 
the  object  of  the  conspiracy,  as  narrated  in 
the  letter,  was  the  object  agreed  upon;  by 
showing  that  that  was  not  a  matter  of 
lotoriety,  nor  a  matter  known  to  anybody 
except  the  conspirators  themselves  on  the 
Jay  of  its  date;  and  by  showing  that  all  the 
evidence  in  this  case,  so  far  as  this  letter 
jan  be  understood  to-day,  corroborates  the 
act  which  I  assert,  that  the  writer  of  the 
etter,  on  the  15th  day  of  April,  was  a  party 
,o  this  conspiracy — a  fact  clearly  enough 
shown,  I  think,  to  hang  him  if  he  were 
bund  with  that  paper  in  his  pocket,  though 
10  man  knew  his  name,  and  no  man  ever 
estiried  about  the  writer,  unless  he  could 
ixplain  how  he  came  by  it. 

The  Commission  overruled  the  motion  of 
Mr.  Ewing. 


TESTIMONY 

RELATING  TO  JOHN  WILKES  BOOTH,  AND  CIRCUM- 
STANCES  ATTENDING  THE  ASSASSINATION. 


ROBERT  R.  JONES. 
For  the  Prosecution. — May  13. 

I  am  a  clerk  at  the  Kirk  wood  House  in 
this  city.  The  leaf  exhibited  to  the  Com 
mission  is  from  the  register  of  the  Kirkwood 
House.  It  contains  the  name  of  G.  A.  Atze- 
rodt,  Charles  County. 

[The  leaf  from  the  hotel  register  was  offered  in  evidence.] 

It  appears  from  the  register  that  Atzerodt 
took  room  No.  126  on  the  morning  of  the 
14th  of  April  last,  I  think  before  8  o'clock 
in  the  morning.  I  was  not  present  when 
his  name  was  registered,  and  did  not  see 
him  until  between  12  and  1  in  the  day.  I 
recognize  Atzerodt  among  the  accused.  That 
is  the  man,  I  think. 

[The  witness  here  pointed  to  the  accused,  G.  A.  Atze 
rodt.] 

I  went  to  the  room  occupied  by  Atzerodt 
after  it  had  been  opened  by  Mr.  Lee,  on  the 
night  of  the  15th  of  April,  and  I  saw  all  the 
articles  that  were  found  there.  I  can  not 
identify  the  knife,  though  it  was  similar  to 
the  one  just  shown  me.  It  was  between  the 
sheet  and  the  mattress.  The  bed  had  not 
been  occupied  on  the  night  of  the  14th,  nor 
had  the  chambermaid  been  able  to  get  into 
the  room  the  next  day.  A  young  man  spoke 
to  Atzerodt  when  I  saw  him  standing  at  the 
office  counter.  I  do  not  know  his  name. 
Atzerodt  before  that  asked  me  if  any  one 
had  inquired  for  him  within  a  short  time. 
From  the  book  it  appears  that  Atzerodt  paid 
one  day  in  advance.  I  had  never  seen  him 
in  the  hotel  before. 

During  that  day  I  gave  a  card  of  J- 
Wilkes  Booth  to  Colonel  Browning,  Mr. 
Johnson's  secretary.  It  was  put  in  his  box. 
I  am  not  positive  that  I  received  it  from  J. 
Wilkes  Booth,  although  I  may  have  done  so. 

Cross-examination  by  MR.  DOSTER. 

I   do   not  think   I  could  identify  the  par 
ticular  pistol  found  in  Atzerodt's   room.     It 
(70) 


was  quite  a  large  one,  such  as  cavalry  offi 
cers  wear,  and  was  loaded  and  capped. 

WILLIAM  A.  BROWNING. 
For  the  Prosecution. — May  16. 

I  am  the  private  secretary  of  President 
Johnson.  Between  4  and  5  o'clock  in  the 
afternoon  of  the  14th  of  April  last,  I  left  the 
Vice-President's  room  in  the  Capitol,  and 
went  to  the  Kirkwood  House,  where  we 
both  boarded.  On  going  to  the  office  of  the 
hotel,  as  was  my  custom,  1  noticed  a  card  in 
my  box,  which  was  adjoining  that  of  Mr. 
Johnson's,  and  Mr.  Jones,  the  clerk,  handed 
it  to  me.  It  was  a  very  common  mistake  in 
the  office  to  put  cards  intended  for  me  into 
the  Vice-President's  box,  and  his  would  find 
their  way  into  mine;  the  boxes  being  to 
gether. 

[A  card  was  here  handed  to  the  witness.] 

I  recognize  this  as  the  card  found  in  my 
box.  The  following  is  written  upon  it  in 
pencil : 

Do  n't  wish  to  disturb  you ;  are  you  at 
home?  J.  WILKES  BOOTH. 

[The  card  was  offered  in  evidence.] 

I  had  known  J.  Wilkes  Booth  when  he 
was  playing  in  Nashville,  Tenn. ;  I  met  him 
there  several  times;  that  was  the  only  ac 
quaintance  I  had  with  him. 

When  the  card  was  handed  to  me,  I  re 
marked  to  the  clerk,  "  It  is  from  Booth ;  is 
he  playing  here?"  I  thought  perhaps  he 
might  have  called  upon  me,  having  known 
me;  but  when  his  name  was  connected  with 
the  assassination,  I  looked  upon  it  differ 
ently. 

Cross-examined  by  MR.  DOSTER. 

The  Vice-President  was,  I  believe,  at  the 
Capitol  the  greater  part  of  the  forenoon  of 
that  day.  He  was  at  dinner  at  the  Kirk 
wood  at  5  o'clock,  and  I  do  not  think  he 
was  out  afterward.  He  was  in  his  room  for 


THE   ASSASSINATION. 


71 


the  balance  of  the  evening.  I  was  there,  I 
think,  up  to  6  or  7  o'clock,  when  I  left,  and 
did  not  return  until  about  11  or  12  o'clock, 
alter  the  assassination. 

CHARLES  DAWSON. 
For  the  Prosecution. — May  26. 

I  am  acquainted  with  the  handwriting  of 
J.  Wilkes  Booth,  and  the  signature  on  the 
card  shown  to  me  is  undoubtedly  that  of 
John  Wilkes  Booth. 

THOMAS  L.  GARDINER. 
For  the  Prosecution.— May  26. 

I  saw  at  the  Government  stables  in  this 
city,  Seventeenth  and  I  Streets,  a  dark-bay 
one-eyed  horse  on  the  8th  of  this  month.  It 
is  the  same  horse  that  was  sold  some  time 
in  the  latter  part  of  November,  by  my 
uncle,  George  Gardiner,  to  a  man  named 
Booth.  Booth  came  to  my  uncle's  with 
Dr.  Samuel  A.  Mudd,  and  Booth  selected 
this  one  out  of  three  horses  my  uncle  had 
for  sale.  In  accordance  with  this  request,  I 
delivered  it  to  him  the  next  morning  at 
Bryantown.  Booth  and  Dr.  Mudd  came  on 
horseback,  and  after  the  purchase  they  left 
together.  Booth  made  the  agreement,  and 
Dr.  Mudd  took  no  part  or  interest  in  the 
purchase  that  I  saw. 

Cross-examined  by  MR.  STONE. 

My  uncle's  house  is  but  a  short  distance 
from  Dr.  Mudd's,  not  over  a  quarter  of  a 
mile.  Booth  said  he  wanted  a  horse  to  run 
in  a  light  buggy  to  travel  over  the  lower 
counties  of  Maryland,  that  he  might  look  at 
the  lands,  as  he  desired  to  buy  some.  My 
uncle  told  him  he  had  but  one  horse  that 
he  could  recommend  as  a  buggy-horse,  and 
that  he  could  not  spare,  as  he  wanted  it  for 
his  own  use.  He  then  offered  to  sell  him  a 
young  mare,  but  Booth  said  a  mare  would 
not  suit  him.  My  uncle  then  said  that  he 
had  an  old  saddle-horse  that  he  would  sell 
him  if  it  would  suit  him.  Booth  examined 
the  horse,  and  said  he  thought  it  would 
suit,  as  he  only  wanted  it  for  one  year.  He 
bought  the  horse,  and  paid  for  him. 

I  think  I  have  heard  of  Booth  being  in 
the  neighborhood  of  Bryantown  some  time 
before  that,  but  I  never  heard  of  l»is  being 
at  Dr.  Mudd's  house.  Our  farms  were  ad 
joining,  and  I  very  often  saw  Dr.  Mudd; 
sometimes  two  or  three  times  a  week. 

BROOKE  STABLER. 
For  the  Prosecution. — May  15. 

I  am  manager  at  Howard's  livery  stable, 
on  G  Street.  I  was  acquainted  with  J. 
Wilkes  Booth,  John  H.  Surratt,  and  George 
A.  Atzerodt.  They  were  frequently  at  the 
stable  together;  they  almost  always  came 


together,  and  were  sometimes  there  three  or 
four  times  a  day.  Mr.  Surratt  kept  two 
horses  at  the  stable,  and  Atzerodt  rode  out 
occasionally  with  Surratt. 

I  have  in  my  hand  a  note  from  Mr.  Sur 
ratt,  which  reads: 

Mr.  Howard  will  please  let  the  bearer,  Mr. 
Atzerodt,  have  my  horse  whenever  he  wishes 
to  ride,  also  my  leggings  and  gloves,  and 
oblige,  Yours,  etc., 

[Signed]  J.  H.  SURRATT. 

Feb.  22,  1865. 

This  note  was  sent  to  the  stable  by  Mrs. 
Surratt,  and  I  put  it  on  file.  Atzerodt  sev 
eral  times  rode  horses  from  that  order.  It 
was  afterward  rescinded. 

In  the  early  part  of  April,  Atzerodt  told 
me  that  John  H.  Surratt  had  been  to  Rich 
mond,  and  that  in  coming  back  he  got  into 
difficulty;  that  the  detectives  were  after  him  ; 
but  he  thought  he  would  soon  be  relieved 
from  the  difficulty. 

On  the  31st  of  March,  Atzerodt  took  away 
from  the  stable  a  horse  blind  of  one  eye,  a 
fine  racking  horse,  and  another  smaller  bay 
horse,  under  an  order  from  John  H.  Surratt. 
Surratt  claimed  the  horses,  but  Booth  paid 
for  their  keep.  Atzerodt  afterward  brought 
these  horses  back  to  the  stable  to  sell  them 
to  Mr.  Howard,  but  failing  to  sell  them,  he 
took  them  away.  The  horse  now  at  the 
Government  stable,  corner  Seventeenth  and 
I  Streets,  is  the  same  one-eyed  bay  horse  that 
Atzerodt  took  away  on  the  31st  of  March, 
and  brought  back  for  sale  some  days  after 
ward. 

WILLIAM  E.  CLEAVER. 
For  the  Prosecution. — May  22. 

I  keep  a  livery  stable  on  Sixth  Street,  in 
this  city.  In  January  last,  J.  Wilkes  Booth 
kept  a  one-eyed  bay  horse  at  my  stable,  part 
of  the  time,  for  about  a  month.  On  the  30th 
of  January  he  sold  the  horse  to  the  prisoner, 
Samuel  Arnold,  so  Booth  told  me,  and  Ar 
nold  paid  me  eight  dollars  for  the  eight  days 
that  the  horse  remained  there  after  the  sale. 

John  H.  Surratt  used  to  hire  horses  from 
me  in  January  last,  to  go  down  into  the 
country  to  parties.  He  was  generally  with 
Mr.  Booth,  but  after  three  or  four  visits  down 
the  country,  Booth  left  word  that  Mr.  Sur 
ratt  was  to  have  his  horse  any  time  he  came 
for  it. 

I  have  seen  Atzerodt  at  our  stable  once; 
he  was  there  with  horses  for  sale.  I  have 
seen  the  one-eyed  horse  now  at  the  Govern 
ment  stables  on  Seventeenth  and  I  Streets, 
and  it  is  the  same  that  Arnold  bought  of 
Booth. 

Cross-examined  by  MR.  EWING. 

I  have  only  seen  Arnold  twice ;  on  the  8th 
of  February  when  he  paid  me,  and  once 
since. 


72 


THE  CONSPIRACY    TRIAL. 


JAMES  W.  PUMPHRY. 
For  the  Prosecution. — May  15. 

I  reside  in  Washington  City,  and  keep  a 
livery  stable.  I  was  acquainted  with  J. 
Wilkes  Booth,  ire  carne  to  my  stable  about 
12  o'clock  of  the  14th  of  April  last,  and  en 
gaged  a  saddle-horse,  which  he  said  he 
wanted  about  4  or  half-past  4  that  day.  lie 
had  been  in  the  habit  of  riding  a  sorrel 
horse,  and  he  came  to  get  it,  but  that  horse 
was  engaged,  and  he  had  in  its  place  a  small 
bay  mare,  about  fourteen  or  fourteen  and  a 
half  hands  high.  She  was  a  bay,  with  black 
legs,  black  mane  and  tail,  and  a  white  star 
in  the  forehead.  I  think  the  off'  front  foot 
had  white  spots.  I  have  never  seen  the  mare 
since.  He  asked  me  to  give  him  a  tie-rein 
to  hitch  the  horse.  I  told  him  not  to  hitch 
her,  as  she  was  in  the  habit  of  breaking  the 
bridle.  He  told  me  he  wanted  to  tie  her 
while  he  stopped  at  a  restaurant  and  got  a 
drink.  I  said,  "Get  a  boy  at  the  restaurant 
to  hold  her."  He  replied  that  he  could  not 
get  a  boy.  "0,"  said  I,  "you  can  find  plenty 
of  bootblacks  about  the  streets  to  hold  your 
horse."  He  then  said,  "  I  am  going  to  Gro- 
ver's  Theater  to  write  a  letter;  there  is  no 
necessity  of  tying  her  there,  for  there  is  a 
stable  in  the  back  part  of  the  alley;  I  will 
put  her  there."  He  then  asked  where  was 
the  best  place  to  take  a  ride  to;  I  told  him, 
"You  have  been  some  time  around  here,  and 
you  ought  to  know."  He  asked,  "How  is 
Crystal  Spring?"  "A  very  good  place,"  I 
said,  "but  it  is  rather  early  for  it."  "Well," 
said  he,  "  I  will  go  there  after  I  get  through 
writing  a  letter  at  Grover's  Theater."  He 
then  rode  off,  and  I  have  never  seen  Booth 
since. 

About  six  weeks  before  the  assassination, 
Booth  called  at  my  stable,  in  company  with 
John  II .  Surratt.  He  said  he  wanted  a  good 
saddle-horse.  I  said,  "  Before  you  get  him 
you  will  have  to  give  me  reference;  you  are 
a  stranger  to  me."  He  replied,  ""if  you 
do  n't  know  me  you  have  heard  of  me;  I  am 
John  Wilkes  Booth."  Mr.  Surratt  spoke  up 
and  said,  "  This  is  John  Wilkes  Booth,  Mr. 
Pumphry;  he  and  I  are  going  to  take  a 
ride,  and  I  will  see  that  you  are  paid  for  the 
horse."  I  let  him  have  the  horse,  and  I  was 
paid. 

Cross-examined  by  MR.  AIKEN. 

Mr.  Surratt  never  came  to  my  place  with 
Booth  after  the  first  time.  I  do  not  know 
any  of  the  prisoners  at  the  bar. 

PETER  TALTAVUL. 
For  the  Prosecution. — May  15. 

I  was  acquainted  with  John  Wilkes 
Booth.  I  kept  the  restaurant  adjoining 
Ford's  Theater,  on  the  lower  side.  Booth 
came  into  my  restaurant  on  the  evening  of 
the  14th  of  April,  I  judge  a  little  after  10 


o'clock,  walked  up  to  the  bar,  and  called 
for  some  whisky,  which  I  gave  him  ;  he 
then  called  for  some  water,  which  I  also 
gave  him ;  lie  placed  the  money  on  the 
counter  and  went  out,  I  saw  him  2:0  out 
of  the  bar  alone,  as  near  as  I  can  judge, 
from  eight  to  ten  minutes  before  I  heard  the 
cry  that  the  President  was  assassinated. 

I  am  acquainted  with  the"  prisoner,  Her- 
old  ;  have  known  him  since  he  was  a  boy. 
I  saw  him  on  the  night  of  the  murder,  or 
the  night  previous  to  that;  he  came  into  my 
place  and  asked  me  if  Mr.  Booth  had  been 
there  that  afternoon.  I  told  him  I  had  not 
been  there  myself  in  the  afternoon,  when  he 
asked,  "Was  he  not  here  this  evening?"  I 
said,  "No,  sir;"  and  he  went  out. 

Cross-examined  by  MR.  STONE. 

I  can  not  positively  swear  as  to  whether 
that  was  Thursday  or  Friday  evening.  I 
think  Herold  came  alone  to  the  bar.  I  did 
not  see  anybody  come  in  there  with  him. 
As  near  as  I  can  recollect,  the  time  was  be 
tween  6  and  7  o'clock. 

SERGEANT  JOSEPH  M.  DYE. 

Fur  the  Prosecution. — May  15. 

On  the  evening  of  the  14th  of  April  last, 
1  was  sitting  in  front  of  Ford's  Theater,  about 
half-past  9  o'clock.  I  observed  several  per 
sons,  whose  appearance  excited  my  suspicion, 
conferring  together  upon  the  pavement.  The 
first  who  appeared  was  an  elegantly-dressed 
gentleman,  who  came  out  of  the  passage, 
and  commenced  conversing  with  a  ruffianly- 
looking  fellow;  then  another  appeared,' and 
the  three  conversed  together.  It  was  then 
drawing  near  the  second  act.  The  one  that 
appeared  to  be  the  leader,  the  well-dressed 
one,  said,  "  I  think  he  will  come  out  now," 
referring  to  the  President,  I  supposed.  The 
President's  carriage  was  standing  in  front  of 
the  theater.  One  of  the  three  had  .been 
standing  out,  looking  at  the  carriage,  on  the 
curbstone,  while  I  was  sitting  there,  and 
then  went  back.  They  watched  awhile,  and 
the  rush  came  down  ;  many  gentlemen  came 
out  and  went  in  and  had  a  drink  in  the  sa 
loon  below.  After  the  people  went  up,  the 
best-dressed  gentleman  stepped  into  the  sa 
loon  himself;  remained  there  long  enough 
to  get  a  drink,  and  came  out  in  a  style  as 
f  he  was  becoming  intoxicated.  He  stepped 
up  and  whispered  to  this  ruffian,  (that  is, 
the  miserablest-looking  one  of  the  three), 
and  went  into  the  passage  that  leads  to  the 
stage  from  the  street.  Then  the  smallest 
one  stepped  up,  looked  at  the  clock  in  the 
vestibule,  called  the  time,  just  as  the  best- 
iressed  gentleman  appeared  again.  Then 
lie  started  up  the  street,  remained  there 
awhile,  and  came  down  again,  and  called 
the  time  again.  I  then  began  to  think  there 
was  something  going  on,  and  looked  toward 


THE    ASSASSINATION. 


73 


this  man  as  he  called  the  time.  Presently 
he  went  up  again,  and  then  came  down  ant 
called  the  time  louder.  I  think  it  was  tei 
minutes  after  10  that  he  called  out  the  las 
time.  He  was  announcing  the  time  to  the 
other  two,  and  then  started  on  a  fast  walk 
up  the  street,  and  the  best  dressed  one  wen 
inside  the  theater. 

I  was  invited  by  Sergeant  Cooper  to  have 
some  oysters;  and  we  had  barely  time  to 
get  seated  in  the  saloon  and  order  the  oys 
tens,  when  a  man  came  rushing  in  and  saic: 
the  President  was  shot. 

[A  photograph  of  J.  Wilkes  Booth  was  handed   to  the 

witness.] 

That  was  the  well-dressed  man ;  but  his 
moustache  was  heavier  and  his  hair  longer 
than  in  the  photograph,  but  these  are  his 
features  exactly. 

The  ruffianly  man  I  saw  was  a  stout 
man,  with  a  rough  face,  and  had  a  bloated 
appearance;  his  dress  had  been  worn  a  con 
siderable  time.  The  prisoner,  Edward  Span- 
gler,  has  the  appearance  of  the  rough-looking 
man,  except  that  he  had  a  moustache. 

The  one  that  called  the  time  was  a  very 
neat  gentleman,  well  dressed,  and  he  had  a 
moustache.  I  do  not  see  him  among  the 
prisoners.  He  was  better  dressed  than  any 
I  see  here.  He  had  on  one  of  the  fashion 
able  hats  they  wear  here  in  Washington, 
with  round  top  and  stiff'  brim.  He  was  not 
a  very  large  man,  about  five  feet,  six  inches 
high  ;  his  coat  was  a  kind  of  drab  color,  and 
his  hat  was  black. 

Cross-examined  by  MR.  EWING. 

During  the  half  hour  or  more  that  I  sat 
in  the  front  of  the  theater,  the  man  in 
slouched  clothes  was  there;  he  stood  on  the 
pavement  at  the  end  of  the  passage.  His 
moustache  was  black,  and  he  had  on  a 
slouched  hat,  one  that  had  been  worn  some 
time.  I  did  not  pay  particular  attention  so 
as  to  observe  the  color  of  his  dress.  Booth 
entered  the  theater  the  last  time  at  the  front 
door;  he  whispered  to  the  man,  and  left 
him,  and  went  into  the  theater  by  the  front 
door.  I  did  not  see  the  man  in  the  slouched 
dress  change  his  position,  because  I  was 
observing  Booth.  The  other  man  went  up 
the  street  on  a  fast  walk.  I  suppose  it  was 
about  fifteen  minutes  after  Booth  entered 
the  theater,  that  we  heard  the  news  of  the 
assassination,  while  we  were  in  the  saloon. 

JOHN  E.  BUCKINGHAM. 
For  the  Prosecution. — May  15. 

I  am  night  door-keeper  at  Ford's  Theater. 
In  the  daytime  I  am  employed  at  the  Wash 
ington  Navy  Yard. 

I  know  John  Wilkes  Booth  by  sight. 
About  10  o'clock  on  the  evening  of  the  14th 
~he  came  to  the  theater,  walked  in  and  went 
out  again,  and  returned  in  about  two  or 
three  minutes.  He  came  to  me  and  asked 


what  time  it  was.  I  told  him  to  step  into 
the  lobby  and  he  could  see.  He  stepped  out 
and  walked  in  again,  entering  by  the  door 
that  leads  to  the  parquette  and  dr ess-circle; 
came  out  again,  and  then  went  up  the  stair 
way  to  the  dress-circle.  The  last  1  saw  of 
him  was  when  he  alighted  on  the  stage  from 
the  box,  and  ran  across  the  stage  with  a 
knife  in  his  hand.  He  was  uttering  some 
sentence,  but  I  could  not  understand  it,  being 
so  far  from  him. 

Cross-examined  by  MR.  EWING. 

I  know  the  accused,  Edward  Spangler.  I 
am  perfectly  satisfied  that  he  was  not  in 
front  of  the  theater  during  the  play  on  the 
night  of  the  14th  of  April;  had  he  come 
out,  I  must  have  seen  him.  I  have  never 
known  Spangler  wear  a  moustache. 

JOHN  F.  SLEICHMANN. 
For  the  Prosecution. — May  15. 

I  am  assistant  property  man  at  Ford's 
Theater,  and  have  to  set  the  furniture,  etc.,  on 
the  stage.  I  was  at  the  theater  on  the  night 
of  the  assassination  of  the  President.  About 
9  o'clock  that  night  I  saw  John  Wilkea 
Booth.  He  came  up  on  a  horse,  and  entered 
by  the  little  back  door  to  the  theater.  Ned 
Spangler  was  standing  by  one  of  the  wings, 
and  Booth  said  to  him,  "  Ned,  you'll  help  me 
all  you  can,  won't  you?"  a~nd  Ned  said,  U0 
yes."  Those  were  the  first  words  that  I  heard. 

I  just  got  a  glimpse  of  Booth  after  the 
President  was  shot,  as  I  was  going  out  at  the 
the  first  entrance  on  the  right-hand  side  near 
the  prompter's  place.  I  saw  Booth  on  the 
afternoon  of  the  14th,  between  4  and  5 
o'clock,  in  the  restaurant  next  door.  I  went  in 
;o  look  for  James  Maddox,  and  I  saw  Booth, 
Ned  Spangler,  Jim  Maddox,  "Peanuts,"  and 
a  young  gentleman  by  the  name  of  John 
Mouldey,  I  think,  drinking  there. 

Cross-examined  by  MR.  EWING. 

Booth  spoke  to  Spangler  right  by  the  back 
door.  I  saw  his  horse  through  the  open 
door,  but  as  it  was  dark  I  could  not  see  if  any 
one  was  holding  it. 

I  was  on  the  stage  that  night,  except  when 
I  had  to  go  down  to  the  apothecary's  store  to 
get  a  few  articles  to  use  in  the  piece,  and  when 
L  went  into  the  restaurant  next  door.  Span- 
gler's  business  on  the  stage  is  shoving  the 
scenes.  I  went  to  the  front  of  the  theater 
)y  the  side  entrance,  on  the  left-hand  side. 
W"hen  I  was  in  front,  I  noticed  the  Presi 
dent's  carriage  there,  but  did  not  see  Spangler; 
lad  he  been  there,  I  guess  1  should  have  seen 
lim.  I  have  never  seen  Spangler  wear  a* 
noustache.  I  was  in  front  of  the  theater  two 
>r  three  times,  but  was  on  the  stage  during 
he  third  act.  I  think  it  was  ten  or  fifteen 
ninutes  before  the  close  of  the  second  act 
hat  I  was  in  the  restaurant  next  door. 

About   ten    minutes,  I   suppose,   after  the 


74 


THE    CONSPIRACY    TRIAL. 


assassination,  Spangler  was  standing  on  the 
stage  by  one  of  the  wings,  with  a  white  hand 
kerchief  in  his  hand.  He  was  very  pale,  and 
was  wiping  his  eyes.  I  do  not  know  whether 
he  was  crying  or  not. 

Booth  was  very  familiar  with  the  actors 
and  employees  of'the  theater,  and  was  back 
ward  and  forward  in  the  theater  frequently. 
He  had  access  to  the  theater  at  all  times,  and 
came  behind  the  scenes,  and  in  the  green-room, 
and  any  whereabout  the  theater,  just  as  though 
he  was  in  the  employment  of  Mr.  Ford. 

When  Booth  spoke  to  Spangler,  they  were 
about  eight  feet  from  me,  but  Booth  and 
Spangler  were  not  more  than  two  or  three  feet 
apart  After  Booth  had  spoken,  he  went 
behind  the  scenes.  I  do  not  know  whether 
Booth  saw  me,  but  he  could  have  seen  me 
from  where  he  was  standing;  no  one  else  was 
by  at  the  time  that  I  noticed.  Spangler  is,  I 
think,  a  drinking  man;  whether  he  was  in 
liquor  that  night  I  do  not  know. 

JOSEPH  BURROUGHS,  alias  u  PEANUTS." 
For  the  Prosecution. — May  16. 

I  carry  bills  for  Ford's  Theater  during 
the  daytime,  and  stand  at  the  stage-door  at 
night.  I  knew  John  Wilkes  Booth,  and  used 
to  attend  to  his  horse,  and  see  that  it  was 
fed  and  cleaned.  His  stable  was  immediately 
back  of  the  theater.  On  the  afternoon  of 
the  14th  of  April,  he  brought  his  horse  to 
the  stable,  between  5  and  6  o'clock.  He 
hallooed  out  for  Spangler;  when  he  came, 
Booth  asked  him  for  a  halter.  He  had  none, 
and  sent  Jake  up  stairs  after  one.  Jim  Mad 
dox  was  down  there  too.  Between  9  and 
10  o'clock  that  night,  I  heard  Deboney  call 
ing  to  Ned  that  Booth  wanted  him  out  in  the 
alley.  I  did  not  see  Booth  come  up  the- 
alley  on  his  horse,  but  I  saw  the  horse  at  the/ 
door  when  Spangler  called  me  out  there  to: 
hold  it.  When  Spangler  told  ^me  to  hold  the 
horse,  I  said  I  could  not;  I  had  to  go  in  tp 
attend  to  my  door.  He  told  me  to  hold  it, 
and  if  there  was  any  thing  wrong  to  lay  the 
blame  on  him;  so  I  held  the  horse.  I  held 
him  as  I  was  sitting  over  against  the  house 
there,  on  a  carpenter's  bench. 

I  heard  the  report  of  the  pistol.  I  was  still 
out  by  the  bench,  but  had  got  off  when  Booth 
came  out.  He  told  me  to  give  him  his  horse. 
He  struck  me  with  the  butt  of  a  knife,  and 
knocked  me  down.  He  did  this  as  he  was 
mounting  his  horse,  with  one  foot  in  the 
stirrup;  he  also  kicked  me,  and  rode  off*  im 
mediately. 

I  was  in  the  President's  box  that  afternoon 
when  Harry  Ford  was  putting  the  flags 
around  it.  Harry  Ford  told  me  to  go  up  with 
Spangler  and  take  out  the  partition  of  the 
box;  that  the  President  and  General  Grant 
were  coming  there.  While  Spangler  was  at 
work  removing  it  he  said,  "Damn  the  Presi 
dent  and  General  Grant,"  I  said  to  him, 
"  What  are  you  damning  the  man  for — a  mar- 


that  has  never  done  any  harm  to  you?"  He 
said  he  ought  to  be  cursed  when  he  got  so 
many  men  killed. 

I  only  saw  one  horse  in  the  stable  when  I 
was  there  between  5  and  6  o'clock,  and  I 
was  not  there  afterward.  There  was  another 
horse  there  some  days  before.  Booth  brought 
a  horse  and  buggy  there;  it  was  a  little  horse; 
I  do  not  remember  the  color.  The  fellow  that 
brought  the  horse  there  lived  at  the  Navy 
Yard.  I  think  he  used  to  go  with  Booth 
very  often.  I  do  not  see  him  among  the 
prisoners. 

[Probably  Herold,  though  the  witness  failed  to  recoguizo 
him  among  the  prisoners  and  the  guards.] 

I  saw  Booth  as  he  came  out  of  the  small 
door.  1  did  not  see  anybody  else.  1  did  not 
see  Spangler  come  in  or  go  out  while  I  was 
sitting  at  the  door. 

Cross-examined  by  MR.  EWING. 

It  was  about  six  or  eight  minutes  after 
Deboney  called  Spangler  that  Spangler  called 
me.  I  was  sitting  at  the  first  entrance  on  the 
left,  attending  to  the  stage-door.  I  was  there 
to  keep  strangers  out,  and  prevent  those  coming 
in  who  did  not  belong  there. 

When  I  was  not  there,  Spangler  used  to 
hitch  up  Booth's  horse,  and  hold  him  or  feed 
him.  Between  5  and  6  that  evening,  Span 
gler  wanted  to  take  the  saddle  off  Booth's 
horse,  but  Booth  would  not  let  him  ;  then  he 
wanted  to  take  the  bridle  off,  but  Booth 
would  not  agree  to  it;  so  Spangler  just  put  a 
halter  round  the  horse's  neck,  but  he  took 
the  saddle  off  afterward. 

I  was  out  in  front  of  the  theater  that  night 
while  the  curtain  was  down  ;  1  go  out  between 
every  act.  When  the  curtain  is  up,  I  go  in 
side.  I  did  not  see  Booth  in  front  of  the  the 
ater  that  night,  nor  Spangler.  I  never  saw 
Spangler  wear  a  moustache. 

Booth  was  about  the  theater  a  great  deal; 
he  sometimes  entered  on  Tenth  Street,  and 
sometimes  from  the  back.  The  stable  where 
Booth  kept  his  horses  is  about  two  hundred 
yards  from  the  back  entrance  to  the  theater. 
When  1  went  to  hold  the  horse  for  Booth 
that  night.  1  think  they  were  playing  the  first 
scene  of  the  third  act. 

Spangler  always  worked  on  the  left-hand 
side  of  the  stage;  that  is  the  side  the  Presi 
dent's  box  was  on,  and  it  was  on  that  side  I 
attended  the  door.  When  I  was  away,  Span 
gler  used  to  attend  the  door  for  me  ;  that  was 
the  door  that  went  into  the  alley  from  Tenth 
Street.  A  man  by  the  name  of  Simmons 
worked  with  Spangler  on  that  side  of  the 
stage,  and  on  the  other  side,  Skeggy,  Jake, 
and  another  man  worked.  While  the  play 
was  going  on,  these  men  were  always  about 
there.  It  was  their  business  to  shove  the 
scenes  on.  They  usually  staid  on  their  own 
side  of  the  stage,  but  when  a  scene  stood  the 
whole  of  the  act,  they  might  go  round  on  the 
other  si.le;  sometimes  they  would  go  out,  but 
not  very  often. 


THE  ASSASSINATION. 


75 


Recalled  for  the  Prosecution. — May  22. 

The  stable  in  the  rear  of  the  theater  was 
fitted  up  for  Booth  in  January,  by  Spangler 
and  a  man  by  the  name  of  George.  It  was 
raised  up  a  little  higher  for  the  buggy,  and 
two  stalls  put  in 'it.  Booth  occupied  that 
stable  until  the  assassination.  First  he  had 
a  saddle-horse,  which  he  sold;  then  he  got 
a  horse  and  buggy.  The  buggy  he  sold  on 
Wednesday  before  the  assassination.  Ned 
Spangler,  the  prisoner,  sold  it  for  him. 

Cross-examined  by  Mr.  EWING. 

I  do  not  know  to  whom  Spangler  sold  it. 
Booth  and  Gifford  told  Spangler  on  the 
Monday,  to  take  it  to  the  bazar  on  Mary 
land  Avenue;  but  he  could  not  get  what  he 
wanted  for  it  there,  and  sold  it  afterward  to 
a  man  that  kept  a  livery  stable. 

MARY  ANN  TURNER   (colored.) 
For  the  Prosecution. — May  16. 

I  reside  in  the  rear  of  Ford's  Theater; 
my  front-door  fronts  to  the  back  of  the 
theater.  I  knew  John  Wilkes  Booth  when 
I  saw  him.  I  saw  him  on  the  afternoon  of 
the  14th,  standing  in  the  back-door  of  Ford's 
Theater,  with  a  lady  by  his  side.  Between 
7  and  8  o'clock  that  night,  he  brought  a  horse 
up  to  the  back  door  of  the  theater,  and, 
opening  it,  called  "Ned"  three  times. 

Ned  came  to  him,  and  I  heard  him  say, 
in  a  low  voice,  "Tell  Maddox  to  come  here." 
When  Maddox  came,  Booth  said  something 
in  a  very  low  voice  to  him,  and  I  saw  Maddox 
reach  out  his  hand  and  take  the  horse. 
Where  Ned  went  I  can  not  tell.  Booth 
then  went  into  the  theater.  After  the  assas 
sination,  I  heard  the  horse  going  very  rapidly 
out  of  the  alley.  I  ran  immediately  to  my 
door  and  opened  it,  but  he  was  gone.  The 
crowd  then  came  out,  and  this  man,  Ned, 
came  out  of  the  theater. 

[The    witness    here    identified    the    accused,    Edward 
^     Spaugler.] 

When  I  saw  him,  I  said,  "Mr.  Ned,  you 
^  know  that  man  Booth  called  you."  Said  he, 
ft"  I  know  nothing  about  it." 


v> 


MARY  JANE  ANDERSON  (colored.) 
For  the  Prosecution. — May  16. 

I  live  right  back  of  Ford's  Theater,  ad 
joining  Mrs.  Turner's  house.  1  knew  John 
Wilkes  Booth  by  sight.  I  saw  him  on  the 
morning  of  the  14th  of  April  down  by  the 
stable,  and  again  between  2  and  3  o'clock  in 
the  afternoon,  standing  in  the  theater  back 
door,  in  the  alley,  talking  to  a  lady.  I  stood 
in  my  gate  and  looked  right  wishful  at  him. 

He  and  this  lady  were  pointing  up  and 
down  the  alley,  as  if  they  were  talking  abqu 
it.  They  stood  there  a  considerable  time^ 
and  then  Booth  went  into  the  theater. 

After  I  had  gone  up  stairs  that  night,  a 
carriage  drove  up,  and  after  that  I  heard  a 


horse  step  down  the  alley.  I  looked  out  of  the 
window,  and  it  seemed  as  if  the  gentleman 
was  leading  the  horse  down  the  alley.  He  did 
not  go  further  than  the  end  of  it,  and  in  a  few 
minutes  he  came  back  up  to  the  theater  door, 
holding  his  horse  by  the  bridle.  He  pushed 
the  door  open,  and  said  something  in  a  low 
voice,  and  then  in  a  loud  voice  he  called 
"  Ned "  four  times.  There  was  a  colored 
man  up  at  the  window,  who  said,  "  Mr.  Ned, 
Mr.  Booth  wants  you."  This  is  the  way  I 
came  to  know  it  was  Mr.  Booth,  for  it  was 
dark  and  I  could  not  see  his  face.  When 
Ned  came,  Mr.  Booth  said,  in  a  low  voice, 
"Tell  Maddox  to  come  here." 

Then  Ned  went  back  and  Maddox  came 
out,  and  they  said  something  to  each  other. 
Maddox  then  took  off  the  horse  from  before 
my  door,  round  to  where  the  work  bench 
was,  that  stood  at  the  right  side  of  the  house. 
They  both  then  went  into  the  theater.  The 
horse  stood  out  there  a  considerable  time, 
and  kept  up  a  great  stamping.  After  awhile, 
the  person  who  held  the  horse  kept  walking 
backward  and  forward ;  I  suppose  the  horse 
was  there  an  hour  and  a  half  altogether. 
Then  I  saw  Booth  come  out  of  the  door 
with  something  in  his  hand,  glittering.  He 
came  out  of  the  theater  so  quick  that  it 
seemed  as  if  he  but  touched  the  horse, 
and  it  was  gone  like  a  flash  of  lightning.  I 
thought  to  myself  that  the  horse  must  surely 
have  run  off  with  the  gentleman.  Presently 
there  was  a  rush  out  of  the  door,  and  I  heard 
the  people  saying.  "Which  way  did  he  go?" 
1  asked  a  gentleman  what  was  the  matter, 
and  he  said  the  President  was  shot.  I  asked 
who  shot  him.  Said  he,  "  The  man  who  went 
out  on  the  horse." 

I  went  up  to  the  theater  door,  and  saw 
Mr.  Spangler.  When  he  came  out,  I  said 
to  him,  "Mr.  Spangler,  that  gentleman  called 
you."  Said  he,  "  No,  he  did  n't."  Said  I, 
"Yes,  he  did."  He  said,  "No,  he  didn't 
call  me."  He  denied  it,  and  I  kept  on  say 
ing  so. 

Cross-examined  by  Mr.  EWING. 

When  Mr.  Maddox  took  the  horse  round 
out  of  my  sight,  I  could  not  see  who  held 
him.  He  came  back  after  a  little  while,  and 
went  into  the  theater  again.  Mr.  Spangler 
came  out  when  Booth  called  him,  and  told 
him  to  tell  Maddox  to  come  out,  but  I  am 
not  certain  that  Spangler  came  out  again. 

JAMES  L.  MADDOX. 
For  the  Prosecution. — May  22. 

I  was  employed  at  Ford's  Theater  as 
property  man.  In  December  last,  I  rented 
from  Mrs.  Davis,  for  John  Wilkes  Booth,  the 
stable  where  he  kept  his  horse  up  to  the 
time  of  the  murder  of  President  Lincoln. 
Mr.  Booth  gave  me  the  rent  money  monthly, 
and  I  paid  it  to  Mrs.  Davis. 

I  saw   Harry  Ford  decorating  the  Presi- 


76 


THE    CONSPIRACY   TKIAL. 


dent's  box  on  the  afternoon  of  the  14th  of 
April,  but  do  not  remember  seeing  any  one 
else  in  the  box.  I  was  in  there  but  once. 

I  saw  Joe  Sirnms,  the  colored  man,  coming 
from  Mr.  Ford's  room,  through  the  alley 
way,  carrying  on  his  head  the  rocking-chair 
that  the  President  was  to  use  in  the  evening. 
I  had  not  seen  that  chair  in  the  box  this 
season  ;  the  last  time  I  saw  it  before  that 
afternoon  was  in  the  winter  of  1863,  when 
it  was  used  by  the  President  on  his  first  visit 
to  the  theater. 

Cross-examined  by  MR.  EWING. 

My  duties  require  me  to  be  on  the  stage 
while  the  performance  is  going  on,  unless,  as 
sometimes  happened,  there  is  nothing  at  all 
to  do,  when  I  go  out.  My  business  is  to  see 
that  the  furniture  is  put  on  the  stage  aright, 
and  to  get  the  actors  any  side  properties  that 
may  be  required  for  use  in  the  play. 

The  passage  way  by  which  Booth  escaped 
is  usually  clear.  Only  when  we  are  playing 
a  heavy  piece,  and  when  in  a  hurry,  do  we 
run  things  in  there.  The  "American  Cousin," 
which  was  performed  on  that  night,  is  not  a 
heavy  piece,  and  the  passage  would  therefore 
be  clear  of  obstruction. 

Spangler's  position  on  the  stage  was  on 
the  left-hand  side,  facing  the  audience,  and 
the  same  side  that  the  President's  box  was 
on.  I  saw  Spangler'  during  nearly  every 
scene.  If  he  had  not  been  at  his  place,  I 
should  certainly  have  missed  him.  If  he 
had  missed  running  off  a  single  scene,  I 
should  have  known  it.  Sometimes  a  scene 
lasts  twenty  minutes,  but  in  the  third  act 
of  the  "American  Cousin"  there  are  seven 
scenes,  the  way  Miss  Keene  plays  it,  and  had 
Spangler  been  absent  live  minutes  after  the 
first  scene  of  this  act  we  should  have  noticed 
it.  In  the  second  act,  I  guess,  he  has  a  half 
hour,  and  in  the  first  scene  of  the  third  act 
he  has  twenty-five  minutes,  and  after  this  the 
scenes  are  pretty  quick. 

I  was  at  the  front  of  the  theater  during  the 
second  act,  but  did  not  see  Spangler  there. 
I  have  never  seen  Spangler  wear  a  moustache 
during  the  two  years  that  I  have  known  him. 

I  was  in  the  first  entrance  to  the  stage,  the 
side  the  President's  box  is  on,  at  the  moment 
of  the  assassination.  Three  or  four  minutes 
before  that,  while  the  second  scene  of  the 
third  act  was  on,  I  crossed  the  stage  with  the 
will,  and  saw  Spangler  in  his  place.  After 
the  pistol  was  fired,  I  caught  a  glimpse  of 
Booth,  when  he  was  about  two  feet  off  the 
stage.  I  ran  on  the  stage  and  heard  a  call 
for  water;  I  ran  and  brought  a  pitcher  full, 
and  gave  it  to  one  of  the  officers.  I  did  not 
see  Spangler  after  that,  that  I  remember, 
until  the  next  morning.  I  may  have  seen 
him,  but  not  to  notice  him. 

I  heard  about  12  o'clock  that  the  Presi 
dent  was  coming  to  the  theater  that  night;  I 
was  told  so  by  Mr.  Harry  Ford.  I  heard  a 
young  man,  one  of  the  officers  connected  with 


!  the  President's  house,  say  that  night  that  he 
had  come  down  that  morning  and  engaged 
the  box  for  the  President. 

JAMES  P.  FERGUSON. 
For  the  Prosecution. — May  15. 

I  keep  a  restaurant,  adjoining  Ford's 
Theater,  on  the  upper  side.  1  saw  J.  Wilkes 
Booth,  on  the  afternoon  of  the  14th,  between 
2  and  4  o'clock,  standing  by  the  side  of 
his  horse — a  small  bay  mare;  Mr.  Maddox 
was  standing  by  him  talking.  Booth  re 
marked,  "See  what  a  nice  horse  I  have  got; 
now  watch,  he  can  run  just  like  a  cat;  "  and, 
striking  his  spurs  into  his  horse,  he  went  off 
down  the  street. 

About  1  o'clock  Mr.  Harry  Ford  came 
into  my  place  and  said,  "Your  favorite,  Gen 
eral  Grant,  is  to  be  at  the  theater  to-night, 
and  if  you  want  to  see  him  you  had  better  go 
and  get  a  seat."  I  went  and  secured  a  seat 
directly  opposite  the  President's  box,  in  the 
front  dress-circle.  I  saw  the  President  and 
his  family  when  they  came  in,  accompanied 
by  Miss  Harris  and  Major  Rathbone. 

Somewhere  near  10  o'clock,  during  the  sec 
ond  scene  of  the  third  act  of  "Our  American 
Cousin/M  saw  Booth  pass  along  near  the 
President's  box,  and  then  stop  and  lean 
against  the  wall.  After  standing  there  a 
moment,  1  saw  him  step  down  one  step,  put 
his  hands  on  the  door  and  his  knee  against 
it,  and  push  the  door  open — the  first  door 
that  goes  into  the  box.  I  saw  no  more  of 
him  until  he  made  a  rush  for  the  front  of  the 
box  and  jumped  over. '  He  put  his  left  hand 
on  the  railing,  and  with  his  right  he  seemed 
to  strike  back  with  a  knife.  I  could  see  the 
knife  gleam,  and  the  next  moment  he  was 
over  the  box.  As  he  went  over,  his  hand 
was  raised,  the  handle  of  the  knife  up,  the 
blade  down.  The  President  sat  in  the  left- 
hand  corner  of  the  box,  with  Mrs.  Lincoln 
at  his  right.  Miss  Harris  was  in  the  right- 
hand  corner,  Major  Rathbone  sitting  back  at 
her  left,  almost  in  the  corner  of  the  box.  V  At 
the  moment  the  President  was  shot,  he  was 
leaning  his  hand  on  the  railing,  looking  down 
at  a  person  in  the  orchestra;  holding  the  flag 
that  decorated  the  box  aside  to  look  between 
it  and  the  post,  I  saw  the  flash  of  the  pistol 
right  back  in  the  box.  As  the  person  jumped 
over  and  lit  on  the  stage,  I  saw  it  was  Booth. 
As  he  struck  the  stage,  he  rose  and  exclaimed, 
" Sic  semper  tyrannus I"  and  ran  directly  across 
the  stage  to  the  opposite  door,  where  the  actors 
come  in. ' 

I  heard  some  one  halloo  out  of  the  box, 
"Revenge  for  the  South!"  I  do  not  know 
that  it  was  Booth,  though  I  suppose  it  must 
have  been;  it  was  just  as  he  was  jumping 
over  the  railing.  His  spur  caught  in  the  blue 
part  of  the  flag  that  was  stretched  around  the 
box,  and,  as  he  went  over,  it  tore  a  piece  of 
the  flag,  which  was  .dragged  half  way  across 
the  stage  on  the  spur  of  his  right  heel. 


THE    ASSASSINATION. 


77 


Just  as  Booth  went  over  the  box,  I  sa\* 
the  President  raise  his  head,  and  then  it  hunt 
back.  I  saw  Mrs.  Lincoln  catch  his  arm 
and  I  was  then  satisfied  that  the  Presiden 
was  hurt.  By  that  time  Booth  was  across 
the  stage.  A  young  man  named  Harry 
Hawk  was  the  only  actor  on  the  stage  ai 
the  time. 

I  left  the  theater  as  quickly  as  I  could 
and  went  to  the  police  station' on  D  Street 
to  give  notice  to  the  Superintendent  of  Police 
Mr.  Webb.  I  then  ran  up  D  Street  to  the 
house  of  Mr.  Peterson,  where  the  President 
was  taken.  Colonel  Wells  was  standing  on 
the  steps,  and  I  told  him  that  I  had  seen  it 
all,  and  I  knew  the  man  who  jumped  out  of 
the  box. 

Next  morning  I  saw  Mr.  Gifford,  who  said, 
"You  made  a  hell  of  a  statement  about  what 
you  saw  last  night;  how  could  you  see  the 
flash  of  the  pistol  when  the  ball  was  shot 
through  the  door?"  On  Sunday  morning 
Miss  Harris,  accompanied  by  her  father, 
Judge  Olin,  and  Judge  Carter,  came  down  to 
the  theater,  and  I  went  in  with  them.  We 
got  a  candle  and  examined  the  hole  in  the 
door  of  the  box  through  which  Mr.  Gifford 
said  the  ball  had  been  shot.  It  looked  to 
me  as  if  it  had  been  bored  by  a  gimlet,  and 
then  rimed  round  the  edge  with  a  knife.  In 
several  places  it  was  scratched  down,  as  if 
the  knife  had  slipped.  After  this  examina 
tion,  I  was  satisfied  that  the  pistol  had  been 
fired  in  the  box. 

Mr.  Gifford  is  the  chief  carpenter  of  the 
theater,  and  I  understood  had  full  charge 
of  it.  I  recollect  when  Richmond  was  sur 
rendered  I  said  to  him,  "Have  you  not  got 
any  flags  in  the  theater?"  He  replied,  "  Yes, 
I  have;  I  guess  there  is  a  flag  about."  I 
said,  "Why  do  you  not  run  it  out  on  the 
roof?"  He  answered,  "  There  's  a  rope,  isn't 
that  enough?"  I  said,  "You  are  a  hell  of 
a  man,  you  ought  to  be  in  the  Old  Capitol." 
He  did  n't  like  me  any  how. 

Cross-examined  by  MR.  EWING. 

We  looked  for  the  bar  that  had  been  used 
to  fasten  the  box-door,  but  could  not  find  it. 
I  know  Mr.  Spangler  very  well.  I  never 
saw  him  wear  a  moustache,  that  I  recollect. 

JAMES  J.  GIFFORD. 
For  the  Prosecution. — May  19. 

I  was  the  builder  of  Ford's  Theater,  and 
am  stage-carpenter  there.  I  noticed  Mr. 
Harry  Clay  Ford  in  the  President's  box,  on 
the  14th  of  April  last,  putting  flags  out;  I 
think  I  saw  Mr.  Raybold  with  him.  When 
I  was  in  the  box  on  Saturday,  the  15th,  I 
saw  the  large  rocking-chair.  I  do  not  know 
whether  or  not  it  has  been  previously  used 
this  season,  but  I  saw  it  there  last  season.  It 
was  part  of  a  set  of  furniture — two  sofas  and 
two  high-backed  chairs — one  with  rockers  and 
one  with  castors.  I  have  sometimes  seen  the 


one  with  castors  in  the  box  this  season,  but 
not  the  rocking-chair.  The  last  time  I  saw 
the  chair  before  it  was  placed  in  the  Presi 
dent's  box  was  in  Mr.  Ford's  room,  adjoining 
the  theater. 

On  Monday  morning,  after  the  assassina 
tion,  I  was  trying  to  find  out  how  the  door  of 
the  President's  box  had  been  fastened,  when 
I  first  saw  the  mortise  in  the  wall.  The 
Secretary  of  War  came  down  to  the  theater 
to  examine  the  box,  and  he  told  me  to  bring 
a  stick  and  fit  it  in  the  door.  I  found  that 
a  stick  about  three  feet  six  inches  long,  if 
pressed  against  it,  would  prevent  the  door 
from  being  opened  on  the  outside,  but  if  the 
door  was  shaken,  the  stick  would  fall.  The 
mortise  in  the  plastering  looked  as  though  it 
had  been  recently  made,  and  had  the  appear 
ance  of  having  been  made  with  a  knife.  Had 
a  chisel  or  hammer  been  used,  it  would  have 
made  a  sound,  but  with  a  knife  it  could  have 
been  done  quietly.  It  might  have  required 
some  ten  or  fifteen  minutes  to  make  it.  I 
had  not  been  in  the  box,  I  think,  for  a  week. 
Had  the  marks  been  there  then,  I  think  I 
should  have  observed  it,  as  I  am  particular 
in  looking  around  to  see  the  place  is  clean. 
It  was  the  duty  of  Mr.  Rayboltd,the  up 
holsterer,  to  decorate  the  box;  but  he  had  a 
stiff  neck,  and  got  Mr.  Clay  Ford  to  do  it  for 
him,  so  he  told  me  afterward. 

At  the  moment  of  the  assassination  I  was 
in  front  of  the  theater;  twenty  minutes  before, 
I  was  behind  the  scenes  where  1  saw  Spangler ; 
he  was  then  waiting  for  his  business  to  change 
the  scene. 

Cross-examined  by  MR.  EWING. 

The  passage  on  each  side  of  the  entrances 
s  always  kept  free.     The  entrances  are   al 
ways  more  or  less  filled  with  tables,  chairs, 
tc.     The  passage  way  through  which  Booth 
passed  to   the  ttuter  door  is  about  two  feet 
eight  inches  to  three  feet  wide;  some  places  a 
ittle  wider,  some  a  little  narrower;  but  it  is 
never  obstructed,  except  by  people  when  they 
lave  a  large  company  on  the  stage;  never  by 
;hairs,  tables,  etc.     It  is  necessary  to  keep 
,his  passage  way  clear  to  allow  the  actors  and 
actresses  to  pass  readily  from  the  green-room 
and  dressing-rooms  to  the  stage.     I  was  on 
he  stage  until  the  curtain  went  up  at  each 
act,  and  saw  Spangler  there  each  time.     The 
ast  time  I  saw  him  was  about  half-past  9 
o'clock. 

I  was  in  front  of  the  theater  a  part  of  the 

ime  between  the  second  and  third  acts.     I 

did  not  see  Spangler  in  front  of  the  theater 

at  all;   I  do  not  think  he  could   have   been 

here  without   my  knowing  it,    because   the 

icenes  would  have  gone  wrong  had  he  left 

he  stage  for  any  length  of  time.     I   never 

knew  Spangler  to  wear  a  moustache. 

In  the  play  of  the  "American  Cousin  "  there 
ire,  I  believe,  some  five  or  six  scenes  in  each 
act,  and  Spanglcr's  presence  on  the  stage 
would  have  been  indispensable  to  the  per- 


73 


THE    CONSPIRACY    TRIAL. 


formance.  Ilitterspaugh  was  on  duty  with 
Spangler  on  his  side  of  the  stage  that  night. 
I  know  nothing  more  of  Booth's  connection 
\  with  Spangler  than  that  it  was  friendly. 
Everybody  about  the  house,  actors  and  all, 
were  friendly  with  Booth ;  he  had  such  a 
winning  way  that  he  made  every  person  like 
him.  He  was  a  good-natured,  jovial  kind  of 
man,  and  the  people  about  the  house,  as  far 
as  I  know,  all  liked  him.  He  had  access  to 
the  theater  by  all  the  entrances,  just  as  the 
employees  of  the  theater  had.  Spangler  ap 
peared  to  be  a  sort  of  drudge  for  Booth,  doing 
such  things  as  hitching  up  his  horse,  etc. 

CAPTAIN  THEODORE  McGowAN. 
For  the  Prosecution. — May  15. 

I  was  present  at  Ford's  Theater  on  the 
night  of  the  assassination.  I  was  sitting  in 
the  aisle  leading  by  the  wall  toward  the  door 
of  the  President's  box,  when  a  man  came  and 
disturbed  me  in  my  seat,  causing  me  to  push 
my  chair  forward  to  permit  him  to  pass;  lie 
stopped  about  three  feet  from  where  1  was 
sitting,  and  leisurely  took  a  survey  of  the 
house.  I  looked  at  him  because  he  happened 
to  be  in  my  line  of  sight.  He  took  a  small 
pack  of  visiting-cards  from  his  pocket,  select 
ing  one  and  replacing  the  others,  stood  a 
second,  perhaps,  with  it  in  his  hand,  and  then 
showed  it  to  the  President's  messenger,  who 
was  sitting  just  below  him.  Whether  the 
messenger  took  the  card  into  the  box,  or, 
after  looking  at  it,'  allowed  him  to  go  in,  I 
do  not  know;  but,  in  a  moment  or  two  more, 
I  saw  him  go  through  the  door  of  the  lobby 
leading  to  the  box,  and  close  the  door. 

After  I  heard  the  pistol  fired,  I  saw  the 
body  of  a  man  descend  from  the  front  of  the 
box  toward  the  stage.  He  was  hid  from  my 
sight  for  a  moment  by  the  heads  of  those 
who  sat  in  the  front  row  of  the  dress-circle, 
but  in  another  moment  he  reappeared,  strode 
across  the  stage  toward  the  entrance  on  the 
other  side,  and,  as  he  passed,!  saw  the  gleam 
ing  blade  of  a  dagger  in  his  right  hand.  He 
disappeared  behind  the  scenes  in  a  moment, 
and  I  saw  him  no  more. 

I  know  J.  Wilkes  Booth,  but,  not  seeing 
the  face  of  the  assassin  fully,  I  did  not  at  the 
time  recognize  him  as  Booth. 

MAJOR  HENRY  R.  RATH  BONE. 
For  the  Prosecution. — May  15. 

On  the  evening  of  the  14th  of  April  last, 
at  about  twenty  minutes  past  8  o'clock,  I,  in 
company  with  Miss  Harris,  left  my  residence 
at  the  corner  of  Fifteenth  and  JI  Streets,  and 
joined  the  President  and  Mrs.  Lincoln,  and 
went  with  them,  in  their  carriage,  to  Ford's 
Theater,  on  Tenth  Street.  On  reaching  the 
theater,  when  the  presence  of  the  President 
became  known,  the  actors  stopped  playing, 
the  band  struck  up  "  Hail  to  the  Chief,"  and 
the  audience  rose  and  received  him  with  vocif 


erous  cheering.  The  party  proceeded  along 
in  the  rear  of  the  dress-circle  and  entered  the 
box  that  had  been  set  apart  for  their  recep 
tion.  On  entering  the  box,  there  was  a  large 
arm-chair  that  was  placed  nearest  the  audi 
ence,  farthest  from  the  stage,  which  the  Pres 
ident  took  and  occupied  during  the  whole 
of  the  evening,  with  one  exception,  when  lie 
got  up  to  put  on  his  coat,  and  returned  and 
sat  down  again.  When  the  second  scene  of 
the  third  act  was  being  performed,  and  while 
I  was  intently  observing  the  proceedings 
upon  the  stage,  with  my  back  toward  the 
door,  I  heard  the  discharge  of  a  pistol  behind 
me,  and,  looking  round,  saw  through  the 
smoke  a  man  between  the  door  and  the  Pres 
ident.  The  distance  from  the  door  to  where 
the  President  sat  was  about  four  feet.  At 
the  same  time  I  heard  the  man  shout  some 
word,  which  I  thought  was  <v  Freedom  !  ''  I 
instantly  sprang  toward  him  and  seized  him. 
'He  wrested  himself  from  my  grasp,  and 
made  a  violent  thrust  at  my  breast  with  a 
large  knife.  I  parried  the  blow  by  striking 
it  up,  and  received  a  wound  several  inches 
deep  in  my  left  arm,  between  the  elbow  and 
the  shoulder.  The  orifice  of  the  wound  was 
about  an  inch  and  a  half  in  length,  and 
extended  upward  toward  the  shoulder  sev 
eral  inches.  The  man  rushed  to  the  front  of 
the  box,  and  1  endeavored  to  seize  him  again, 
but  only  caught  his  clothes  as  he  was  leap 
ing  over  the  railing  of  the  box.  The  clothes, 
as  I  believe,  were  torn  in  the  attempt  to  hold 
him.  As  he  went  over  upon  the  stage,  1 
cried  out,  "Stop  that  man./  I  then  turned 
to  the  President;  his  position  was  not 
changed  ;  his  head  was  slightly  bent  forward, 
and  his  eyes  were  closed.  1  saw  that  he  was 
unconscious,  and,  supposing  him  mortally 
wounded,  rushed  to  the  door  for  the  purpose 
of  calling  medical  aid. 

On  reaching  the  outer  door  of  the  passage 
way,  I  found  it  barred  by  a  heavy  piece  of 
plank,  one  end  of  which  was  secured  in  the 
wall,  and  the  other  resting  against  the  door. 
It  had  been  so  securely  fastened  that  it  re 
quired  considerable  force  to  remove  it.  This 
wedge  or  bar  was  about  four  feet  from  the 
floor.  Persons  upon  the  outside  were  beat 
ing  against  the  door  for  the  purpose  of  enter 
ing.  I  removed  the  bar,  and  the  door  was 
opened.  Several  persons,  who  represented 
themselves  as  surgeons,  were  allowed  to 
enter.  I  saw  there  Colonel  Crawford,  and 
requested  him  to  prevent  other  persons  from 
entering  the  box. 

I  then  returned  to  the  box,  and  found  the 
surgeons  examining  the  Presidents  person. 
They  had  not  yet  discovered  the  wound.  As 
soon  as  it  was  discovered,  it  was  determined 
to  remove  him  from  the  theater.  He  was 
carried  out,  and  I  then  proceeded  to  assist 
Mrs.  Lincoln,  who  was  intensely  excited,  to 
leave  the  theater.  On  reaching  the  head  of 
the  stairs,  I  requested  Major  Potter  to  aid 
me  in  assisting  Mrs.  Lincoln  across  the 


THE  ASSASSINATION. 


79 


street  to  the  house  where  the  President  was 
being  conveyed.  The  wound  which  1  had 
received  had  been  bleeding  very  profusely, 
and  on  reaching  the  house,  feeling  very  faint 
from  the  loss  of  blood,  I  seated  myself  in 
the  hall,  and  soon  after  fainted  away,  and 
was  laid  upon  the  floor.  Upon  the  return 
of  consciousness  I  was  taken  to  my  resi 
dence. 

In  a  review  of  the  transactions,  it  is  my 
confident  belief  that  the  time  which  elapsed 
between  the  discharge  of  the  pistol  and  the 
time  when  the  assassin  leaped  from  the  box 
did  not  exceed  thirty  seconds.  Neither  Mrs. 
Lincoln  nor  Miss  Harris  hacl  left  their  seats. 

[A  bowie-knife,  with  a  heavy  seven-inch  blade,  was 
exhibited  to  the  witness,  stains  of  blood  being  still  upon 
the  blade.] 

This  knife  might  have  made  a  wound  sim 
ilar  to  the  one  I  received.  The  assassin 
held  the  blade  in  a  horizontal  position,  I 
think,  and  the  nature  of  the  wound  would 
indicate  it;  it  came  down  with  a  sweeping 
blow  from  above. 

[The  knife  was  offered  in  evidence.] 

WILLIAM  WITHERS,  JR. 
For  the  Prosecution. — May  15. 

I  am  the  leader  of  the  orchestra  at  Ford's 
Theater.  I  had  some  business  on  the  stage 
with  our  stage-manager  on  the  night  of  the 
14th,  in  regard  to  a  national  song  that  I  had 
composed,  and  I  went  to  see  what  costume 
they  were  going  to  sing  it  in.  After  talking 
with  the  manager,  I  was  returning  to  the 
orchestra,  when  I  heard  the  report  of  a  pis 
tol.  I  stood  with  astonishment,  thinking 
why  they  should  fire  off  a  pistol  in  "Our 
American  Cousin."  As  I  turned  round  I 
heard  some  confusion,  and  saw  a  man  run 
ning  toward  me  with  his  head  down.  I  did 
not  know  what  was  the  matter,  and  stood 
completely  paralyzed.  As  he  ran,  I  could 
not  get  out  of  his  way,  so  he  hit  me  on  the 
leg,  and  turned  me  round,  and  made  two 
cuts  at  me,  one  in  the  neck  and  one  on  the 
side,  and  knocked  me  from  the  third  en 
trance  down  to  the  second.  The  scene  saved 
me.  As  I  turned,  I  got  a  side  view  of  him, 
and  I  saw  it  was  John  Wilkes  Booth.  He 
then  made  a  rush  for  the  back  door,  and  out 
he  went.  I  returned  to  the  stage  and  heard 
that  the  President  was  killed,  and  I  saw  him 
in  the  box  apparently  dead. 

Where  I  stood  on  the  stage  was  not  more 
than  a  yard  from  the  door.  He  made  one 
plunge  at  the  door,  which  I  believe  was 
shut,  and  instantly  he  was  out.  The  door 
opens  inward  on  the  stage,  but  whether  lie 
opened  it,  or  whether  it  was  opened  for  him, 
1  do  not  know.  I  noticed  that  there  was 
nothing  to  obstruct  his  passage  out,  and  this 
seemed  strange  to  me,  for  it  was  unusual. 

Cross-examined  by  MR.  EWING. 

On  that  night  the  passage  seemed  to  be 
clear  of  every  thing.  I  do  not  think  it 


wanted  many  minutes  until  the  scene  changed, 
and  it  was  a  time  in  the  scene  when  the 
stage  and  passage  way  would  have  been 
somewhat  obstructed  by  some  of  the  scene- 
shifters,  and  the  actors  in  waiting  for  the 
next  scene,  which  requires  their  presence. 

I  never  remember   seeing  Spangler  wear  a 
moustache. 

JOSEPH  B.  STEWART. 

For  the  Prosecution. — May  20. 

I  was  at  Ford's  Theater  on  the  night  of 
the  assassination  of  the  President.  I  was 
sitting  in  the  front  seat  of  the  orchestra,  on 
the  right-hand  side.  The  sharp  report  of 
a  pistol  at  about  half-past  10 — evidently  a 
charged  pistol — startled  me.  I  heard  an  "ex 
clamation,  and  simultaneously  a  man  leaped 
from  the  President's  box,  lighting  on  the 
stage.  He  came  down  with  his  back  slight 
ly  toward  the  audience,  but  rising  and  turn 
ing,  his  face  came  in  full  view.  At  the 
same  instant  I  jumped  on  the  stage,  and  the 
man  disappeared  at  the  left-hand  stage  en 
trance.  1  ranf  across  the  stage  as  quickly  as 
possible,  following  the  direction  he  took, 
calling  out,  "Stop  that  man!"  three  times. 
When  about  twenty  or  twenty-five  feet  from 
the  door  through  which  the  man  ran,  the 
door  slammed  to  and  closed.  Coming  up  to 
the  door,  I  touched  it  first  on  the  side 
where  it  did  not  open;  after  which  I  caught 
hold  at  the  proper  place,  opened  the  door, 
and  passed  out.  The  last  time  that  I  exclaimed 

II  Stop  that    man,"  some    one   said,  "He    is 
getting  on  a  horse  at  the  door;"  and  almost 
as    soon    as   the  words   reached    my  ears    I 
heard  the  tramping  of  a  horse.    On  opening 
the   door,  after   the   temporary  balk,  I    per 
ceived  a  man  mounting  a  horse.     The  moon 
was  just  beginning  to  rise,  and  I  could  see 
any    thing   elevated    better    than    near    the 
ground.      The    horse    was    moving    with    a 
quick,  agitated   motion — as  a  horse  will   do 
when    prematurely    spurred    in    mounting — 
with    the   reins   drawn  a   little  to   one   side, 
and  for  a  moment  I  noticed  the  horse  describe 
a  kind  of  circle  from  the  right  to  the  left.     I 
ran  in  the  direction  where  the  horse  was  head 
ing,  and  when  within  eight  or  ten  feet  from 
the  head  of  the  horse,  and  almost  up  with 
in  reach  of  the  left  flank,  the  rider  brought 
him  round   somewhat   in  a   circle  from    the 
left   to  the   right,  crossing   over,  the   horse's 
feet  rattling  violently  on  what  seemed  to  be 
rocks.     I  crossed  in  "the  same  direction,  aim 
ing  at    the  rein,  and  was  now    on  the  right 
flank  of  the  horse.     He  was  rather  gaining 
on    me  then,  though    not    yet   in  a   forward 
movement.     I  could  have  reached  his  flank 
with  my  hand  when,  perhaps,  two-thirds  of 
the  way  over   the  alley.     Again    lie  backed 
to  the  right  side  of  the   alley,  brought    the 
horse  forward  and  spurred  him;  at  the  same 
instant  he  crouched  forward,  down  over  the 
pummel  of  the  saddle.    The  horse  then  went 


80 


THE    CONSPIRACY   TRIAL. 


forward,  and  soon  swept  rapidly  to  the  left, 
up  toward  F  Street.  I  still  ran  after  the 
horse  some  forty  or  fifty  yards,  and  com 
manded  the  person  to  stop.  All  this  occu 
pied  only  the  space  of  a  few  seconds. 

After  passing  the  stage,  I  saw  several  per 
sons  in  the  passage  way,  ladies  and  gentle 
men,  one  or  two  men,  perhaps  five  persons. 

Near  the  door  on  my  right  hand,  I  saw 
a  person  standing,  who  seemed  to  be  in  the 
act  of  turning,  and  who  did  not  seem  to  be 
moving  about  like  the  others.  Every  one 
else  that  I  saw  but  this  person,  seemed  in 
tensely  excited,  literally  bewildered;  they 
were  all  in  a  terrible  commotion  and  moving 
about,  except  this  man.  As  I  approached 
the  door,  and  only  about  fifteen  feet  from  it, 
this  person  was  facing  the  door;  but,  as  I 
got  nearer,  he  partially  turned  round,  moving 
to  the  left,  so  that  I  had  a  view  of  him  as  he 
was  turning  from  the  door  and  toward  me. 

[The  witness  was  directed  to  look  at  tho  prisoners,  to  see  if 
he  recognized  among  them  the  person  he  saw  standing  at 
the  door.] 

That  man  [pointing  to  Edward  Spangler] 
looks  more  like  the  person  I  saw  near  the 
door  than  anybody  else  I  see  here.  He  re 
calls  the  impression  of  the  man's  visage  as 
I  passed  him.  When  the  assassin  alighted 
on  the  stage,  I  believed  I  knew  who  it 
was  that  had  committed  the  deed;  that  it 
was  J.  Wilkes  Booth,  and  I  so  informed 
Richards,  Superintendent  of  the  Police,  that 
night.  I  knew  Booth  by  sight  very  well, 
and  when  I  was  running  after  him,  I  had 
no  doubt  in  my  mind  that  it  was  Booth, 
and  should  have  been  surprised  to  find  that 
it  was  anybody  else.  I  felt  a  good  deal 
vexed  at  his  getting  away,  and4 had  no  doubt 
when  I  started  across  the  stage  that  I  could 
catch  him.  From  the  time  I  heard  the  door 
slam  until  I  saw  the  man  mounting  his 
horse,  was  not  over  the  time  I  could  make 
two  steps. 

I  am  satisfied  that  the  person  I  saw  in 
side  the  door  was  in  a  position  and  had  an 
opportunity,  if  he  had  been  disposed  to  do  so, 
to  have  interrupted  the  exit  of  Booth,  and 
from  his  manner,  he  was  cool  enough  to 
have  done  so.  This  man  was  nearest  of  all 
to  the  door,*  and  could  have  opened  and 
gone  out  before  I  did,  as  it  would  have  been 
but  a  step  to  the  right  and  a  reach  to  open  it. 

Cross-examined  by  MR.  EWING. 

The  man  I  have  spoken/  of  stood  aboul 
three  feet  from  the  door  out  of  which  Booth 
passed;  I  noticed  him  just  after  the  door 
slammed.  From  the  position  in  which  he 
stood,  he  might  have  slammed  it  without  my 
noticing  it.  The  lock  of  the  door,  as  I  ap 
proached  it,  was  on  the  right-hand  side,  th< 
hinges  to  the  left.  If  the  door  had  beer 
open  and  I  had  not  been  stopped,  I  coulc 
have  got  the  range  of  the  horse  outside. 

As  1  passed  out  of  the  door,  a  person,  a 
small  person,  passed  behind  me,  directl) 


under  my  right  elbow,  [the  witness  was  a  tall 
nan,]  and  as  I  approached  the  horse  at  the 
nearest  point,  some  one  ran  rapidly  out  of  the 
illey.  The  one  who  passed  me  is  not  so  tall 
is  Spangler  by,  perhaps,  four  or  five  inches. 

I  did  not  notice,  that  the  person  whom  I  now 

uppose  to  be  Spangler  wore  whiskers  or  a 

moustache;  my  impression    is    that   he  was 

lightly  bearded.     It  was  his  visage,  the  side 

ace,  that  struck  me.     I  do  not  undertake  to 

iwear  positively    that   the  prisoner,  Edward 

Spangler,  is  the"  person  I  saw  near  that  door; 

)ut  I  do    say  that  there  is   no    one   among 

hese  prisoners,  who  calls   that  man    to    my 

mind,  except  the  one  who,  I  am  told,  is  Mr. 

Spangler;  but  I  am  decided  in  my  opinion, 

that  Spangler  resembles  the   person    I   saw 

here. 

As  I  got  to  the  door,  Booth  was  just  com 
pleting  his  balance  in  the  saddle.  I  think, 
Tom  his  position  and  the  motion  of  the 
lorse,  that  the  moment  he  got  one  foot  in 
:he  stirrup  he  spurred  the  horse,  and,  hav 
ing  the  rein  drawn  more  on  one  side  than 
the  other,  lost  control  of  him  for  the  moment, 
so  far  as  making  him  take  a  straight  for- 
,vard  movement;  he  was  circling  round, 
moving  with  a  quick  sort  sort  of  motion,  ap 
parently  making  more  exertion  than  head 
way,  but  still  going  pretty  fast. 

Hearing  the  report  of  a  loaded  pistol,  and 
seeing  the  man  jump  from  the  President's 
box  with  a  dagger  in  his  hand,  my  impres 
sion  was  that  the  person  had  assassinated, 
or -attempted  to  assassinate,  the  President, 
and  every  effort  I  made  after  I  started  to  get 
upon  the  stage  was  under  this  conviction; 
so  much  so  that  I  stated  to  the  people  in  the* 
tenement  houses  in  the  rear,  before  I  returned 
to  the  theater,  that  the  person  who  went  off 
on  that  horse  had  shot  the  President. 

JOE  SIMMS  (colored.) 
For  the  Prosecution. — May  15. 

I  have  worked  at  Ford's  Theater  for  the  past 
two  years.  On  the  day  of  the  President's 
assassinatian,  during  the  performance,  while 
I  was  up  on  the  flies  to  wind  up  the  curtain, 
I  heard  the  fire  of  a  pistol,  and  looking  down 
I  saw  Booth  jump  out  of  a  private  box  down 
on  to  the  stage,  with  a  bowie-knife  in  his 
hand,  and  then  making  his  escape  across  the 
stage.  Between  5  and  6  o'clock  that  day, 
I  was  in  front  of  the  theater,  when  I  saw 
Booth  go  into  the  restaurant  by  the  side  of 
the  theater.  Spangler  was  sitting  out  in  front, 
and  Booth  invited  him  to  take  a  drink.  I  did 
not  hear  a  word  spoken  between  them.  Booth 
and  Spangler  were  very  intimate.  I  have 
often  seen  them  together,  and  drinking  to 
gether. 

Cross-examined  by  Mu.  EWING. 

Spangler  had  charge  of  Booth's  horses. 
There  was  a  young  man  hired  by  Booth,  but 
I  suppose  Mr.  Booth  thought  he  might  not 


THE    ASSASSINATION. 


81 


Jo  right  by  his  horses,  so  he  got  Spangler  to 
see  to  their  being  fed  and  watered. 

Spangler's  place  on  the  stage  is  at  the  back 
part  of  the  stage,  next  to  the  back-door  lead 
ing  out  to  the  side  alley.  The  President's  box 
is  on  the  left-hand  side  as  you  look  toward 
the  audience.  My  position  is  on  the  flies  on 
the  opposite  side  of  the  President's  box,  and 
Mr.  Spangler's  place  was  on  the  opposite  side 
below,  the  side  the  President's  box  is  on.  I 
saw  him  in  the  first  act.  I  do  not  remember 
seeing  him  in  the  second,  but  I  was  not  look 
ing  for  him.  When  I  saw  Mr.  Spangler,  he 
had  his  hat  on.  I  never  saw  him  wear  a 
moustache.  Mr.  Spangler  was  on  the  stage 
attending  to  his  business  as  usual  that  night, 
lie  was  obliged  to  be  there.  From  my  position 
on  the  flies  I  could  see  him  very  well. 

Recalled  for  the  Prosecution. — May  18. 

On  the  afternoon  of  the  day  of  the  assas 
sination,  I  saw  Mr.  Harry  Ford  and  another 
gentleman  fixing  up  the  box.  Mr.  Ford  told 
me  to  go  to  his  bed-room  and  get  a  rocking- 
chair,  and  bring  it  down  and  put  it  in  the  Presi 
dent's  box.  I  did  so.  The  chair  had  not  been 
there  before  this  season.  It  was  a  chair  with 
a  high  back  to  it  and  cushioned.  Mr.  Span 
gler  was  at  the  theater  during  the  afternoon. 
He  worked  there  altogether,  the  same  as  I  did. 

Cross-examined  by  MR.  \E WING. 

I  did  not  notice  Mr.  Spangler  there  in  the 
afternoon,  but  his  business  was  to.be  there.  It 
was  about  3  o'clock  in  the  afternoon  when 
Mr.  Harry  Ford  and,  I  think,  Mr.  Bucking 
ham  were  in  the  private  box.  l^did  not  see 
Spangler  in  the  President'-s  box  in  the  after 
noon,  nor  did  I  see  him  when  I  came  away 
from  the  private  box. 

JOHN  MILES  (colored.) 
JFor  the  Prosecution. — May  15. 

I  work  at  Ford's  Theater.  I  was  there 
on  the  day  of  the  assassination  of  the  Presi 
dent.  About  3  o'clock  in  the  afternoon  Booth 
put  his  horse  in  the  stable,  and  Ned  Spangler 
and  Jim  Maddox  were  with  him.  The  stable 
is  not  more  than  five  yards  from  the  theater. 
Between  9  and  10  o'clock  that  night,  J. 
Wilkes  Booth  brought  a  horse  from  the  stable, 
and,  coming  to  the  back  door  of  the  theater, 
called  "  Ned.  Spangler  "  three  times.  When 
Booth  first  called  Spangler,  some  person  told 
him  that  Booth  called  him,  and  he  ran  across 
the  stage  to  him.  I  saw  nothing  more  of 
Spangler  or  Booth  until  I  heard  the  pistol  go 
off.  In  a  minute  or  two  I  heard  the  sound 
of  a  horse's  feet  going  out  of  the  alley.  Before 
this  I  saw  a  boy  holding  the  horse  in  the 
alley,  perhaps  for  fifteen  minutes.  That  was 
after  Booth  had  called  Spangler. 

Cross-examined  by  MR.  EWING. 

When  Booth  called  Spangler  I  was  up  on 
the  flies,  about  three  and  a  half  stories  from 
6 


the  stage.  It  was,  I  think,  in  the  third  act; 
and  from  the  time  Booth  brought  his  horse 
there  until  the  President  was  shot  was,  I 
think,  about  three-quarters  of  an  hour.  I 
I  was  at  the  window  pretty  nearly  all  the 
time.  From  the  time  Booth  brought  the 
horse  until  he  went  away,  and  from  the  time 
I  looked  out  of  the  window,  John  Peanuts 
was  lying  on  the  bench  holding  the  horse;  I 
did  not  see  any  one  else  holding  it. 

John  Peanuts  attended  to  Mr.  Booth's 
horses.  I  have  seen  Spangler  hold  Booth's 
horses  or  hitch  them  up,  but  1  never  saw  him 
put  any  gearing  on  them.  Spangler's  place 
on  the  stage  was  on  the  same  side  as  the 
President's  box,  and  he  was  there  when  Booth 
called  him.  There  was  another  man  work 
ing  with  Spangler  to  help  him  shove  the 
scenes. 

After  the  President  was  shot,  I  came  down 
the  stairs,  and  I  saw  Spangler  out  there  at 
the  door  Booth  went  out  of.  There  were,  I 
think,  two  'or  three  other  or  more  men  out 
there,  some  of  whom  were  strangers.  When 
I  came  down,  I  went  toward  the  door,  and 
Spangler  came  out,  and  I  asked  him  who  it 
was  that  held  the  horse,  and  he  said,  "  Hush  ! 
do  n't  say  any  thing  about  it;  "  and  I  did  n't 
say  any  more,  though  I  knew  who  it  was, 
because  I  saw  the  boy  holding  the  horse. 
Spangler,  I  suppose,  when  he  said  this,  was 
about  a  yard  and  a  half  from  the  door,  out 
side  the  door.  Spangler  appeared  to  be  ex 
cited;  every  person  appeared  to  be  very  much 
excited.  By  the  time  I  got  down  stairs,  the 
door  through  which  Booth  had  passed  was 
open.  I  never  saw  Spangler  wear  a  moustache. 

DR.  ROBERT  KING  STONE. 
For  the  Prosecution — May  16. 

I  am  a  practicing  physician  in  this  city, 
and  was  the  family  physician  of  the  late 
President  of  the  United  States. 

I  was  sent  for  by  Mrs.  Lincoln  immedi 
ately  after  the  assassination.  I  arrived  in  a 
very  few  moments,  and  found  that  the  Presi 
dent  had  been  removed  from  the  theater  to 
the  house  of  a  gentleman  living  directly  op 
posite;  and  had  been  carried  into  the  back 
room  of  the  residence,  and  was  there  placed 
upon  a  bed.  I  found  a  number  of  gentle 
men,  citrzens,  around  him,  and,  among  oth 
ers,  two  assistant  surgeons  of  the  army,  who 
had  brought  him  over  from  the  theater,  and 
had  attended  to  him.  They  immediately 
gave  the  case  over  to  my  care,  knowing  my 
relations  to  the  family.  I  proceeded  to  ex 
amine  the  President,  and  found  that  he  had 
received  a  gun-shot  wound  in  the  back  part 
of  the  left  side  of  his  head,  into  which  I  car 
ried  my  finger.  I  at  once  informed  those 
around"  that  the  case  was  a  hopeless  one; 
that  the  President  would  die;  that  there  was 
no  positive  limit  to  the  duration  of  his  life;" 
that  his  vital  tenacity  was  very  strong,  and  he 
would  resist  as  long  as  any  man  could ;  but 


82 


THE  CONSPIRACY    TRIAL. 


that  death  certainly  would  soon  close  the 
Bcene.  I  remained  with  him,  doing  what 
ever  was  in  my  power,  assisted  by  my  friends; 
but,  of  course,  nothing  could  be  done,  and 
he  died  from  the  wound  the  next  morning 
at  about  half-past  7  o'clock.  It  was  about 
a  quarter  past  10  that  I  reached  him. 

The  next  day,  previous  to  the  process  of 
embalmment,  an  examination  was  made  in  the 
presence  of  Surgeon-General  Barnes,  Dr.  Cur 
tis,  and  Dr.  Woodward,  of  the  army.  We 
traced  the  wound  through  the  brain,  and  the 
ball  was  found  in  the  anterior  part  of  the 
game  side  of  the  brain,  the  left  side;  it  was 
a  large  ball,  resembling  those  which  are  shot 
from  the  pistol  known  as  the  Derringer;  an 
unusually  large  ball — that  is,  larger  than 
those  used  in  the  ordinary  pocket  revolvers. 
It  was  a  leaden  hand-made  ball,  and  was 
flattened  somewhat  in  its  passage  through 
the  skull,  and  a  portion  had  been  cut  off  in 
going  through  the  bone.  I  marked  the  ball 
"A.  L.,"  the  initials  of  the  late  President, 
and  in  the  presence  of  the  Secretary  of  War, 
in  his  office,  inclosed  it  in  an  envelope,  sealed 
it  with  my  private  seal,  and  indorsed  it  with 
my  name.  The  Secretary  inclosed  it  in  an 
other  envelope,  which  he  indorsed  in  like 
manner,  and  sealed  with  his  private  seal.  It 
was  left  in  his  custody,  and  he  ordered  it  to 
be  placed  among  the  archives  of  his  depart 
ment. 

[An  official  envelope,  sealed  with  the  official  seal  of  the 
Secretary  of  War,  was  here  opened  by  the  Judge  Advo 
cate  in  the  presence  of  the  witness,  from  which  was  taken 
a  Derringer  pistol  and  an  envelope  containing  a  leaden 
ball  in  two  pieces.] 

This  is  the  ball  which  I  extracted  from 
the  head  of  the  President;  I  recognize  it 
from  the  mark  which  1  put  upon  it  with  my 
pen-knife,  as  well  as  from  the  shape  of  the 
ball.  This  smaller  piece  is  the  fragment 
which  was  cut  oft'  in  its  passage  through  the 
skull.  The  ball  was  flattened,  as  I  have  be 
fore  described. 

[The  ball  was  then  offered  in  evidence.] 

WILLIAM  T.  KENT. 
For  the  Prosecution. — May  16. 

About  three  minutes  after  the  President 
was  shot,  I  went  into  his  box;  there  were 
two  other  persons  there  and  a  surgeon,  who 
asked  me  for  a  knife  to  cut  open  the  Presi 
dent's  clothes.  On  leaving  the  theater  I 
missed  my  night-key,  and  thinking  1  had 
dropped  it  in  pulling  out  my  knife,  I  hurried 
back,  and  on  searching  round  the  floor  of 
the  box,  I  knocked  my  foot  against  a  pistol, 
which  I  picked  up,  and,  holding  it  up,  1  cried 
out,  "  I  have  found  the  pistol."  I  gave  it  up 
to  Mr.  Gobright,  the  agent  of  the  Associated 
Press.  The  next  morning  I  went  round  to 
the  police  station  and  identified  it  there. 

[A  Derringer  pistol,  about  six  inches  in  length,  was 
handed  to  the  witness.] 

This  is  the  pistol  I  picked  up  in  the  Pres- 
'dent's  box  on  the  night  of  the  14th  of  April. 

[The  pistol  was  offered  in  evidence.] 


ISAAC  JACQUETTE. 
For  the  Prosecution. — May  18. 

I  was  present  at  Ford's  Theater  on  the 
night  of  the  assassination.  Soon  after  the 
President  was  carried  out,  I  went  to  the  box 
with  several  others. 

[A  wooden  bar.  about  two  inches  square  and  three  feet 
long,  was  handed  to  the  witness.] 

This  wooden  bar  was  lying  on  the  floor 
inside  of  the  first  door  going  into  the  box. 
I  picked  it  up  and  took  it  home  with  me. 
There  was  an  officer  stopping  at  my  boarding- 
house,  and  he  wanted  a  piece  of  it,  which  I 
sawed  off'  for  him,  but  he  concluded  after 
ward  not  to  take  it.  It  is  nearly  covered 
with  spots  of  blood  which  were  fresh  at  the 
time  when  I  found  it. 

[The  bar  was  offered  in  evidence.] 

JUDGE  A.  B.  OLIN. 
For  the  Prosecution. — May  18. 

On  Sunday,  the  16th  of  April,  accompanied 
by  Miss  Harris,  I  visited  Ford's  Theater,  and 
made  an  examination  of  the  President's  box, 
doors,  locks,  etc.  My  attention  was  called  to 
the  incision  into  the  wall  that  was  prepared 
to  receive  the  brace  that  fitted  into  the  corner 
of  the  panel  of  the  outer  door ;  the  brace 
was  not  there.  The  door  opens  into  the 
passage  leading  to  the  box  at  an  angle  with 
the  wall,  and  a  brace,  fitted  against  the  wall 
to  the  corner  of  the  door,  fastens  the  door 
very  securely.  I  discovered  that,  and  looked 
for  the  remains  of  the  plastering  that  had 
been  cut  from  the  wall  to  make  this  incision. 
That,  so  far  as  1  could  observe,  had  been 
carefully  removed  from  the  carpet,  where  it 
must  have  fallen,  as  it  was  cut  by  some 
sharp  instrument 

The  indentation  upon  the  panel  of  the 
door  where  the  brace  might  have  been  fixed 
from  against  the  wall,  was  quite  perceptible, 
and  the  brace  was  so  fixed  that  it  would  be 
very  difficult  to  remove  it  from  the  outside. 
I  think  it  could  not  have  been  done  without 
breaking  the  door  down.  The  more  pressure 
that  was  made  upon  it  from  the  outside,  or 
the  dress-circle,  the  firmer  it  would  have  been 
held  in  its  place. 

It  had  been  said  that  the  pistol  was  dis 
charged  through  the  panel  of  the  door.  As 
the  passage  way  is  somewhat  dark,  I  pro 
cured  a  light  and  examined  very  carefully 
the  hole  through  the  door.  I  discovered  at 
once  that  that  was  made  by  some  small  in 
strument  in  the  first  place,  and  was,  as  I 
supposed,  cut  out  then  by  a  sharp  instrument 
like  a  penknife;  and,  by  placing  the  light 
near  the  door,  I  thought  I  saw  marks  of  a 
shaip  cutting  knife  used  to  clean  out  the  hole. 
I  examined  to  see  if  I  could  discover  the 
chips  that  must  have  been  made  by  boring 
and  cutting  this  small  hole,  but  they  had 
been  removed.  It  was  a  freshly-cut  hole, 
the  wood  apparently  being  as  fresh  aa  it 
would  have  been  the  instant  it  was  cut 


PURSUIT  AND  CAPTURE  OF  BOOTH  AXD  HEROLD. 


83 


I  then  discovered  that  the  clasp  which  fas 
tens  the  bolt  of  the  outer  door  had  been 
loosened.  The  upper  screw  holding  the  clasp 
had  been  loosened  in  such  a  way  that  when 
the  door  was  locked  I  could  push  it  open 
with  my  forefinger. 

I  then  placed  the  chair  in  which  the  Pres 
ident  sat  in  the  position,  as  nearly  as  Miss 
Harris  could  recollect,  it  had  occupied  on 
the  night  of  the  assassination.  Seating  my 
self  in  it,  and  closing  the  door,  it  was  found 
that  my  head — about  midway  from  the  base 
to  the  crown — would  be.  in  the  range  of  the 
eye  of  a  person  looking  through  the  hole 
in  the  door.  It  was  a  large  high-backed 
arm-chair,  with  satin  cushions,  not  a  rock 
ing-chair,  I  think. 

DAVID  0.  KEED. 
For  the  Prosecution. — May  15. 

On  the  14th  of  April,  about  2  o'clock,  as 
I  was  standing  just  below  the  National 
Theater,  I  saw  John  H.  Surratt,  and  we 
bowed  to  each  other  as  he  passed.  I  am 
quite  positive  that  it  was  John  II.  Surratt. 
He  was  dressed  in  a  country-cloth  suit  of 
drab,  very  fine  in  its  texture  and  appearance, 
and  very  genteelly  got  up.  I  took  particular 
notice  of  his  clothing,  for  it  was  my  business 
to  make  clothes.  He  had  a  little,  round- 
crowned  drab  hat.  He  was  on  foot,  but  I 
particularly  noticed  he  wore  a  pair  of  new, 
brass-plated  spurs,  with  very  large  rowels. 

I  have  known  John  II.  Surratt  a  great 
while.  I  knew  him  when  quite  a  boy,  at  his 
father's  house,  and  have  seen  him  out  gun- 
See  testimony  of  C, 


ning.  He  had  grown  pretty  much  out  of  m^ 
recollection  ;  still  I  knew  him,  though  I  had 
no  intimacy  with  him. 

Cross-examined  by  Mr.  AIKEN. 

I  last  saw  John  II.  Surratt  before  the  14th 
of  April,  I  think,  in  October.  In  appearance, 
John  H.  Surratt  is  light  complexioned,  with 
rather  singular  colored  hair;  it  is  not  red,  it 
is  not  white,  it  is  a  kind  of  sandy.  It  was 
cut  rounded,  so  as  to  lay  low  on  his  collar, 
and  a  little  heavy.  I  did  not  notice  whether 
he  wore  a  moustache  or  a  goatee,  for  I  was 
more  interested  in  his  clothing. 

I  never  saw  him  in  that  dress  before.  In 
bight,  I  suppose  he  is  about  five  feet,  ten 
inches;  he  is  not  a  stout  man,  but  rather 
delicate.  I  do  not  suppose  he  would  weigh 
over  one  hundred  and  forty  pounds,  judging 
from  his  build.  In  walking,  he  stoops  a 
little.  He  was  on  the  same  side  of  the 
avenue  that  I  was,  and  passed  within  three 
feet  of  me.  I  am  as  certain  that  it  was 
Surratt  as  that  I  stand  here. 

JOHN  F.  COYLE. 
For  the  Prosecution. — May  17. 

I  am  connected  with  the  National  Intelli 
gencer.  I  knew  J.  Wilkes  Booth  in  hia 
lifetime,  though  not  intimately. 

The  statement  that  Booth,  on  the  night 
before  the  assassination,  wrote  an  article  in 
which  he  set  forth  the  reasons  for  his  crime, 
and  left  it  with  one  of  the  editors  of  the  Na 
tional  Intelligencer,  is  not  correct.  No  such 
paper  was  ever  received,  to  my  knowledge. 
D.  Hess,  page  99. 


PURSUIT  AND  CAPTURE  OF  BOOTH  AND  HEROLD. 


JOHN  FLETCHER. 
For  the  Prosecution. — May  17. 

David  E.  Herold  came  to  our  stable,  in 
company  with  the  prisoner,  Atzerodt,  about 
a  quarter  to  1  o'clock,  on  the  14th  of 
April,  and  engaged  a  horse,  which  he  told 
me  to  keep  for  him,  and  he  would  call  for  it 
at  4  o'clock.  At  a  quarter  past  4  he 
came  and  asked  me  how  much  I  would 
charge  him  for  the  hire  of  the  horse.  I 
told  him  five  dollars.  He  wanted  it  for 
four.  I  told  him  he  could  not  have  it  forj 
that.  He  knew  the  horse,  and  inquired  forj 
that  particular  one.  I  went  down  to  the 
stable  with  him,  and  told  him  to  take  a  mare 
that  was  in  the  stable;  but  he  would  not 
have  her.  I  then  told  him  I  would  give 
him  the  other  horse.  He  then  wanted  to 


see  the  saddles  and  bridles.  I  showed  him  & 
saddle,  and  he  said  it  was  too  small.  Then 
I  showed  him  another.  That  suited  him 
very  well,  only  that  it  had  not  the  kind  of 
stirrups  he  wanted.  The  stirrups  were  cov 
ered  with  leather,  and  he  wanted  a  pair  of 
English  steel  stirrups.  He  then  wanted  to 
see  the  bridles.  I  took  him  into  the  office 
and  showed  him  the  bridles,  and  he  picked 
out  a  double-reined  bridle.  Before  he  mounted 
the  horse  he  asked  me  how  late  he  could 
stay  out  with  him.  I  told  him  he  could 
stay  out  no  later  than  8  o'clock,  or  9,  at 
furthest.  After  that  hour  I  became  very 
uneasy  about  the  horse,  and  wanted  to  see 
about  it  before  I  closed  up  the  stable;  and 
that  is  how  I  got  to  see  Atzerodt  and  Herold. 
At  about  10  o'clock,  having  a  suspicion 
that  Herold  was  going  to  take  the  horse 


84 


THE    CONSPIRACY    TRIAL. 


away,  I  went  across  E  Street,  and  up  Four 
teenth  Street,  till  I  came  upon  Pennsylvania 
Avenue,  close  to  Willard's,  where  I  saw 
ITerold  riding  the  roan  horse.  He  seemed 
as  if  he  was  corning  down  from  the  Treasury 
upon  the  Avenue.  He  was  passing  Four 
teenth  Street;  the  horse  was  pulling  to  get 
to  the  stable,  for  he  was  a  horse  very  well 
acquainted  with  the  stable.  I  suppose  Iler- 
old  knew  me  by  the  light  of  the  lamp,  for 
he  turned  the  horse  around,  and  I  hallooed  to 
him,  "You  get  off  that  horse  now;  you 
have  had  it  long  enough;"  but  he  put  spurs 
to  it,  and  went,  as  fast  as  the  horse  could 
go,  up  Fourteenth  Street,  making  no  reply  to 
me.  He  was  a  very  fast  horse,  and  all  the 
time  used  as  a  lady's  saddle-horse ;  any  one 
could  ride  him,  he  was  so  gentle  and  nice; 
his  pace  was  a  single  foot  rack.  He  would 
trot  if  you  would  let  the  bridle  go  slack.  He 
was  a  light  roan  horse,  black  tail,  legs,  and 
mane,  and  close  on  fifteen  hands  high.  I 
kept  sight  of  him  until  he  turned  to  the  east 
of  F  Street.  That  was  about  twenty-five 
minutes  past  10. 

I  then  returned  to  the  stable  for  a  saddle 
and  bridle  and  horse  myself,  and  went 
along  the  avenue  until  I  came  to  Thirteenth 
Street ;  went  up  Thirteenth  Street  to  E  ;  along 
E  until  I  came  to  Ninth,  and  turned  down 
Ninth  Street  to  Pennsylvania  Avenue  again. 
I  went  along  the  avenue  to  the  south  side  of 
the  Capitol.  I  there  met  a  gentleman,  and 
asked  him  if  he  had  passed  any  one  riding  on 
horseback.  He  said  yes,  and  that  they  were 
riding  very  fast.  I  followed  on  until  1  got  to 
the  Navy  Yard  bridge,  where  the  guard 
halted  me,  and  called  for  the  sergeant  of  the 
guard.  He  came  out,  and  I  asked  him  if  a 
roan  horse  had  crossed  that  bridge,  giving 
him  a  description  of  the  horse,  saddle,  and 
bridle,  and  the  man  that  was  riding.  He 
said,  "Yes,  he  has  gone  across  the  bridge." 
"Did  he  stay  long  here?"  Tasked.  He  re 
plied,  "  He  said  that  he  was  waiting  for  an 
acquaintance  of  his  that  was  coming  on ;  but 
he  did  not  wait,  and  another  man  came 
riding  a  bay  horse  or  a  bay  mare,  right  after 
him."  "  Did  he  tell  you  his  name?"  "  Yes, 
he  said  his  name  was  Smith."  I  asked  if  1 
could  cross  the  bridge  after  them.  He  said, 
"  Yes,  you  can  cross,  but  you  can  not  return." 
I  said,  "If  that  is  so,  I  will  not  go."  So  I 
turned  around  and  came  back  to  the  city 
again.  When  I  came  to  Third  Street,  I 
looked  at  my  watch,  and  it  wanted  ten  min 
utes  to  12.  *I  rode  pretty  fast  going  down  to 
the  Navy  Yard,  but  I  rode  slowly  coming 
back.  I  went  along  E  Street  until  I  got  to 
Fourteenth  Street,  and  inquired  of  the  fore 
man  at  Murphy's  stable,  by  the  name  of 
Dorsey,  whether  this  roan  horse  had  been 
put  up  there.  He  said,  "No;  but,"  said  he, 
"you  had  better  keep  in,  for  President  Lin 
coln  is  shot  and  Secretary  Seward  is  almost 
dead."  I  then  returned  to  the  stable,  put 
up  the  horse,  came  outside  of  the  office 


window,  and  sat  down  there;  it  was  half-past 


1  o'clock. 


Cross-examined  by  MR.  STONE. 


When    I   caught  sight  of  Herold   on    the 
horse,  near  Willard's,  the  horse  seemed  some 
what  tired,  and  as  if  he  wanted  to  go  to  the 
stable,  and  appeared  as  if  he  had  been  ridden 
I  a  right  smart  distance.      He  was  then  going 
1  an  easy  kind  of  pace.     I  am  quite  satisfied 
that  it  was  Herold  I  saw  on  my  horse. 

I  became  acquainted  with  Herold  by  his 
calling  at  our  stable,  about  the  5th  or  6th  of 
April,  inquiring  for  the  man  Atzerodt,  but  he 
did  not  inquire  for  him  by  name;  he  wanted 
to  know  if  the  man  that  kept  the  horse  in 
the  side  stable  had  been  there  that  day.  He 
came  to  our  stable  every  day,  from  about  the 
5th  or  6th  of  April  until  the  12th,  inquiring 
for  Atzerodt,  and  I  saw  him  ride  with  him. 
One  day  Atzerodt  went  out  riding,  and  sent 
the  horse  back  by  Herold,  and  the  next  day 
Atzerodt  asked,  "  How  did  he  bring  the  horse 
back?"  and  if  he  rode  him  fast. 

SERGEANT  SILAS  T.  COBB. 
For  the  Prosecution. — May  16. 

On  the  night  of  the  14th  of  April,  I  waa 
on  duty  at  the  Navy  Yard  bridge.  At  about 
half-past  10  or  11  o'clock,  a  man  approached 
rapidly  on  horseback.  The  sentry  challenged 
him,  and  I  advanced  to  see  if  he  was  a  proper 
person  to  pass. 

I  asked  him,  "Who  are  you,  sir?"  He 
said,  "  My  name  is  Booth."  I  asked  him 
where  he  was  from.  He  made  answer,  "  From 
the  city."  "Where  are  you  going?"  I  said; 
and  he  replied,  "  1  am  going  home."  I  asked 
him  where  his  home  was.  He  said  it  was  in 
Charles.  I  understood  by  that  that  he  meant 
Charles  County.  1  asked  him  what  town. 
He  said  he  did  not  live  in  any  town.  I  said, 
"  You  must  live  in  some  town."  Said  he,  "  I 
live  close  to  Beantown  ;  but  do  not  live  in  the 
town."  I  asked  him  why  he  was  out  so  late; 
if  he  did  not  know  the  rule  that  persons  were 
not  allowed  to  pass  after  9  o'clock.  He  said 
it  was  new  to  him;  that  he  had  had  some 
where  to  go  in  the  city,  and  it  was  a  dark 
night,  and  he  thought  he  would  have  the 
moon  to  ride  home  by.  The  moon  rose  that 
night  about  that  time.  1  thought  he  was  a 
proper  person  to  pass,  and  I  passed  him. 


[A  photograph  of  J.  Wilkos  Booth  was  shown  the  wit 
ness.] 

That  is  the  man  that  passed  first.  He  rode 
a  small-sized  horse,  rather  an  under-sized 
horse,  I  should  think,  a  very  bright  bay,  with 
a  shining  skin,  and  it  looked  as  though  he 
had  just  had  a  short  burst — a  short  push — 
and  seemed  restive  arid  uneasy,  much  more 
so  than  the  rider.  In  all,  I  had  some  three 
or  four  minutes'  conversation  with  him  before 
I  allowed  him  to  pass. 

In  perhaps  five  or  seven,  or,  at  the  outside, 
ten  minutes,  another  person  came  along.  He 


PURSUIT  AND  CAPTURE  OF  BOOTH  AND  HEROLD. 


85 


did  not  seem  to  be  riding  so  rapidly  as  the 
first,  or  his  horse  did  not  show  signs' of  it  a 
much  as  the  first.  I  asked  who  he  was,  an 
he  said  that  his  name  was  Smith,  and  that  h 
was  going  home;  that  he  lived  at  the  Whit 
Plains.  I  asked  him  how  it  was  that  he  wa 
out  so  late.  He  made  use  of  a  rather  indel: 
cate  expression,  and  said  that  he  had  been  ii 
bad  company.  I  brought  him  up  before  th 
guard-house  door,  so  that  the  light  shone  ful 
in  his  face  and  on  his  horse. 

[The  accused,  David  E.  Herold,  was  directed  to  stand  v 
for  identification.] 

He  is  very  near  the  size  of  the  secon 
horseman;  but,  I  should  think,  taller,  al 
though  I  can  not  be  sure,  as  he  was  on 
horseback.  He  had  a  lighter  complexion 
than  this  man.  After  his  explanation,  '. 
allowed  him  to  pass.  He  rode  a  medium 
sized,  roan  horse.  I  should  think  the  horse 
was  going  at  a  heavy  racking  pace,  or  some 
thing  like  that.  The  horse  did  not  move 
like  a  trotting  horse.  He  carried  his  heac 
down. 

Afterward,  a  third  horseman  rode  up,  anc 
made  inquiry  after  a  roan  horse;  after  a  man 
passing  on  a  roan  horse.  He  made  no  in 
quiry  about  the  other  horseman  who  had 
passed  first.  He  did  not  seem  to  have  any 
business  on  the  other  side  of  the  bridge  tha 
I  considered  of  sufficient  importance  to  pass 
him,  and  so  I  turned  him  back. 

I  do  not  think  the  moon  was  up  at  that 
time,  but  rose  after  the  horsemen  had  gone 
forward. 

POLK  GARDINER. 
For  the  Prosecution. — May  16. 

On  the  night  of  the  14th  of  April  last,  I 
was  on  the  Bryantown  road,  coming  to 
Washington,  and  about  11  o'clock,  when  on 
Good  Hope  Hill,  I  met  two  horsemen,  one 
about  half  a  mile  behind  the  other,  and  botl 
riding  very  fast.  The  first,  who  was  on  a 
dark  horse,  I  think  a  bay,  asked  me  if  a 
horseman  had  passed  ahead;  he  then  asked 
me  the  road  to  Marlboro,  and  if  it  did  not 
turn  to  the  right.  I  told  him  no;  to  keep 
the  straight  road. 

As  the  second  horseman  rode  up,  a  lot  of 
teamsters  were  passing  at  the  time,  and  I 
heard  him  ask  them  whether  a  horseman 
had  passed  ahead;  I  do  not  know  whether 
he  asked  them  or  me;  I  did  not  answer. 
He  rode  a  roan  horse,  a  light  horse,  a  roan  or 
an  iron-gray. 

Cross-examined  by  MR.  Cox. 

I  met  the  first  horseman  two  miles  and  a 
half  or  three  miles  from  the  city,  half-way 
up  the  hill.  It  was  not  over  five  or  ten 
minutes  before  the  second  horseman  came 
along.  Both  of  them  were  riding  very  fast. 
I  got  off  the  hill  entirely  before  I  met  the 
second  man. 


JOHN  M.  LLOYD. 
For  the  Prosecution. — May  13. 

I  reside  at  Mrs.  Surratt1  s  tavern,  Surratts- 
ville,  and  am  engaged  in  hotel-keeping  and 
farming.  Some  live  or  six  weeks  before  the 
assassination  of  the  President,  John  H-.  Sur 
ratt,  David  E.  Herold,  and  G.  A.  Atzerodtcame 
to  my  house.  Atzerodt  and  Surratt  drove 
up  to  my  house  in  the  morning  first,  and 
went  toward  T.  B.,  a  post-office  about  five 
miles  below  there.  They  had  not  been  gone 
more  than  half  an  hour,  when  they  returned 
with  Herold.  All  three,  when  they  came 
into  the  bar-room,  drank,  I  think.  John 
Surratt  then  called  me  into  the  front  parlor, 
and  on  the  sofa  were  two  carbines,  with 
ammunition ;  also  a  rope  from  sixteen  to 
twenty  feet  in  length,  and  a  monkey-wrench. 
Surratt  asked  me  to  take  care  of  these  things, 
and  to  conceal  the  carbines.  I  told  him 
there  was  no  place  to  conceal  them,  and  I 
did  not  wish  to  keep  such  things.  He  then 
took  me  into  a  room  I  had  never  been  in, 
'mmediately  above  the  store-room,  in  the 
back  part  of  the  building.  He  showed  me 
where  I  could  put  them  underneath  the  joists 
of  the  second  floor  of  the  main  building. 
I  put  them  in  there  according  to  his  direc 
tions. 

I  stated  to  Colonel  Wells  that  Surratt  put 
them  there,  but  I  carried  the  arms  up  and 
put  them  in  there  myself.  There  was  also 
one  cartridge-box  of  ammunition.  Surratt 
said  he  just  wanted  these  articles  to  stay  for 
a  few  days,  and  he  would  call  for  them. 
On  the  Tuesday  before  the  assassination  of 
he  President,  I  was  coming  to  Washington, 
and  I  met  Mrs.  Surratt,  on  the  road,  at  Union- 
:own.  When  she  first  broached  the  subject 
;o  me  about  the  articles  at  my  place,  I  did 
lot  know  what  she  had  reference  to.  Then 
die  came  out  plainer,  and  asked  me  about 
he  "shooting-irons."  I  had  myself  forgot- 
en  about  their  being  there.  I  told  her  they 
e  hid  away  far  back,  and  that  I  was 
ifraid  the  house  might  be  searched.  She 
old  me  to  get  them  out  ready  ;  that  they 
vould  be  wanted  soon.  I  do  not  recollect 
listinctly  the  first  question  she  put  to  me. 
ler  language  was  indistinct,  as  if  she  wanted 
o  draw  my  attention  to  something,  so  that 
10  one  else  would  understand.  Finally  she 
ame  out  bolder  with  it,  and  said  they 
vould  be  wanted  soon.  I  told  her  that  I 
lad  an  idea  of  having  them  buried ;  that 

was    very     uneasy    about     having    them 
here. 
On  the  14th  of  April  I  went  to  Marlboro 

0  attend    a  trial  there;  and  in    the  evening, 
fhen  I  got  home,  which  I  should  judge  was 
bout  5  o'clock,  I   found  Mrs.  Surratt  there, 
'he  met  me  out  by  the  wood-pile  as  1  drove 

1  with  some  fish  and  oysters  in    my  buggy. 
Jie  told   me  to    have    those    shooting-irons 
eady  that  night,  there  would  be  some  parties 
vho   would    call    for    them.     She   gave   me 


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THE    CONSPIRACY   TRIAL. 


something  wrapped  in  a  piece  of  paper, 
which  I  took  up  stairs,  and  found  to  be  a 
field-glass.  She  told  me  to  get  two  bottles! 
of  whisky  ready,  and  that  these  things  were 
to  be  called  for  that  night. 

Just  about  midnight  on  Friday,  Her- 
old  came  into  the  house  and  said,  "Lloyd, 
for  God's  sake,  make  haste  and  get  those 
things."  I  did  not  make  any  reply,  but 
went  straight  and  got  the  carbines,  supposing 
they  were  the  parties  Mrs.  Surratt  had  re- 


Cross-examined  by  MR.  AIKEN. 

I  rented  Mrs.  Surratt's  house  at  Surratts- 
ville,  about  the  first  of  December  last,  and 
Mrs.  Surratt  frequently  came  there  after 
that.  When  I  met  Mrs.  Surratt  on  the 
Tuesday  preceding  the  assassination,  I  was 
coming  to  Washington,  and  she  was  going 
to  my  place,  1  supposed.  I  stopped,  and  so 
did  she  I  then  got  out  and  went  to  her 
buggy.  It  had  been  raining,  and  was  very 


ferred   to,    though    she   didn't   mention    any  (muddy.     I  do  not  know  that   the  word  "car- 
names.     From    the  way  he  spoke   he  must   bine"     was    mentioned.      She    spoke    about 

those  shooting-irons.     It  was  a  very  quick 
and  hasty  conversation.     I  am  confident  that 


have  been  apprised  that  I  already  knew  what 
I  was   to  give  him.     Mrs.  Surratt  told  me  to 


give  the  carbines,  whisky,  and  field-glass.  I 
did  not  give  them  the  rope  and  monkey- 
wrench.  Booth  did  n't  come  in.  I  did  not 
know  him;  he  was  a  stranger  to  me.  He  re- 


she  named  the  shooting-irons  on  both  oc 
casions;  not  so  positive  about  the  first  as 
I  am  about  the  last;  I  know  she  did  on 


the  last  occasion.     On   the  Friday  I  do   not 

mained  on  his  horse.     Herold  came  into  the  think  Mrs.  Surratt  was  there   over  ten   rnin- 
house  and  got  a   bottle  of  whisky,  and  took  |  utes. 
it   out  to   him,  and    he   drank   while  sitting 


on  his  horse.  Herold,  I  think,  drank  some 
out  of  the  glass  before  he  went  out. 

I  do  not  think  they  remained  over  five 
minutes.  They  only  took  one  of  the  car 
bines.  Booth  said  he  could  not  take  his,  be 
cause  his  leg  was  broken. 

Just  as  they  were  about  leaving,  the  man 
who  was  with  Herold  said,  "I  will  tell  you 


When  I  first  drove  up  to  the  wood-yard, 
Mrs.  Surratt  came  out  to  where  I  was.  The 
first  thing  she  said  to  me  was,  "Talk  about 
the  devil,  and  his  imps  will  appear,"  or 
something  to  that  effect,  I  said,  "I  was  not 
aware  that  I  was  a  devil  before."  "Well." 
said  she,  "Mr.  Lloyd,  I  want  you  to  have 
those  shooting-irons  ready;  there  will  be 
parties  here  to-night  who  will  call  for  them." 


some  news,  if  you  want  to  hear  it,"  or  some-;  At  the  same  time  she  gave  me  something 
thing  to  that  effect.  I  said,  "I  am  not  par-j  wrapped  up  in  a  newspaper,  which  I  did  not 
ticular ;  use  your  own  pleasure  about  telling -undo  until  I  got  up  stairs. 
it."  '"Well,"  said  he,  "I  am  pretty  certain  |  The  conversation  I  had  with  Mrs.  Sur- 
that  we  have  assassinated  the  President  and  j  rat  about  the  shooting-irons  was  while  I  was 
Secretary  Seward."  I  think  that  was  his '  carrying  the  fish  and  oysters  into  the  house, 
language,  as  well  as  I  can  recollect.  Whether 'Mrs.  Surratt  then  requested  me  to  fix  her 
Herold  was  present  at  the  time  he  said  that,  buggy  for  her.  The  front  spring  bolts  were 
or  whether  he  was  across  the  street,  I  am  broken;  the  spring  had  become  detached 
not  positive;  I  was  much  excited  and  un-ifrom  the  axle.  I  tied  them  with  some  cord ; 


nerved  at  the  time. 

The  moon  was  shining  when  the  men 
came.  The  man  whose  leg  was  broken  was 
on  a  light-colored  horse;  I  supposed  it  to  be 
a  gray  horse,  in  the  moonlight.  It  was  a 
large  horse,  I  suppose  some  sixteen  hands 
high  ;  the  other,  ridden  by  Herold,  was  a  bay, 
and  not  so  large. 

Between  8  and  9  o'clock  the  next  morning 
the  news  was  received  of  the  assassination 
of  the  President,  and  I  think  the  name  of 
Booth  was  spoken  of  as  the  assassin. 

I  have  heard  Atzerodt  called  by  the  nick 
name  of  "Port  Tobacco."  I  used  to  call 
him  "Miserable,"  and  then  I  called  him,  for 
a  long  time,  "Stranger."  I  do  not  think  I 
had  been  acquainted  with  him  over  two 
months  before  the  assassination. 

[Two  carbines,  Spencer  rifles,  were  exhibited  to  the  wit 
ness.] 

The  carbines  were  brought  in  covers.  The 
cover  that  is  on  this  one  looks  like  the  cover 
in  which  it  was  brought  to  rue.  I  took  the 
cover  off  one,  and  the  peculiar  kind  of 
breech  attracted  my  attention,  never  having 
seen  one  like  it  before.  They  look  like  the 
carbines  that  were  brought  to  my  place. 


that  was  the  only  fixing  I  could  give  them. 
Mrs.  Off'utt,  my  sister-in-law,  was,  I  believe, 
in  the  yard  ;  but  whether  she  heard  the  con 
versation  or  not,  I  do  not  know. 

The  first  information  that  I  gave  of  this 
occurrence  was  to  Lieutenant  Lovett  and 
Captain  Cottingham,  some  time  about  the 
middle  of  the  week ;  but  I  did  not  detail  all 
the  circumstances.  I  told  these  officers  that 
it  was  through  the  Surratts  that  I  had  got 
myself  into  the  difficulty.  If  they  had  never 
brought  me  on  there,  I  never  would  have  got 
myself  into  difficulty,  or  words  to  that  effect; 
and  I  gave  full  information  of  the  particu 
lars  to  Colonel  Wells,  on  the  Saturday  week 
following. 

When  Booth  and  Herold  left  my  house, 
they  took  the  road  toward  T.  B.  Herold 
came  up  toward  the  stable  between  me  and 
the  other  man,  who  was  on  the  light-colored 
horse,  and  they  rode  off'  at  a  pretty  rapid 
gait.  When  Herold  brought  back  the  bottle 
from  which  Booth  had  drank  the  whisky,  he 
remarked  to  me,  "  I  owe  you  a  couple  of 
dollars;"  and  said  he,  "Here."  With  that 
he  offered  me  a  note,  which  next  morning  I 
found  to  be  one  dollar,  which  just  about  paid 


PURSUIT  AND  CAPTURE  OF  BOOTH  AND  HEROLD. 


87 


for  the  bottle  of  liquor  they  had  just  pretty 
nearly  drank. 

I  think  I  told  Mrs.  Offutt,  after  Mrs.  Sur- 
ratt  went  away,  that  it  was  a  field-glass  she 
had  brought.  She  did  not  tell  me  that  Mrs. 
Surratt  gave  her  a  package. 

By  MR.  DOSTER. 

I  did  not  know  his  name  to  be  Atzerod 
until,  I  suppose,  two  or  three  weeks  at  the 
farthest. 

By  MR.  STONE. 

Booth  did  not  take  a  carbine  with  him 
I  only  brought  one  carbine  down;  Booth 
said  he  could  not  carry  his;  I  had  the  car 
bine  then  in  my  bed-chamber.  It  was  no 
great  while  after  Mrs.  Surratt  left,  when,  ac 
cording  to  her  orders,  I  got  them  from  the 
fitore-room  and  carried  them  to  my  bed-room 
to  have  them  ready.  I  brought  the  carbine 
and  gave  it  to  Herold  before  they  said  they 
had  killed  the  President;  they  never  told  me 
that  until  they  were  about  riding  off.  I  was 
right  smart  in  liquer  that  afternoon,  and 
after  night  I  got  more  so.  I  went  to  bed  be 
tween  8  and  9  o'clock,  and  slept  very  soundly 
until  12  o'clock.  I  woke  up  just  as  the 
clock  struck  12.  A  good  many  soldiers  came 
there  on  Saturday,  and  on  Sunday  night 
others  came  and  searched  the  place.  When 
they  asked  if  I  had  seen  two  men  pass  that 
way  in  the  morning,  I  told  them  I  had  not. 
That  is  the  only  thing  I  blame  myself  about. 
If  I  had  given  the  information  they  asked 
of  me,  I  should  have  been  perfectly  easy  re 
garding  it.  This  is  the  only  thing  I  am 
fiorry  I  did  not  do. 

Recalled  for  the  Prosecution. — May  15. 

Cross-examined  by  MR.  AIKEN. 
When  the  party  brought  the  carbines  to 
my  house,  Mr.  Surratt  assisted  me  in  carry 
ing  them  up  stairs,  together  with  the  cart 
ridge-boxes,  and  they  were  immediately  con 
cealed  between  the  joists  and  ceiling  of  an 
unfinished  room,  where  they  remained  until 
that  Friday  when  Mrs.  Surratt  gave  me  in 
formation  that  they  would  be  wanted  that 
night.  I  then  took  them  out,  according  to 
her  direction,  and  put  them  in  my  bed-room, 
BO  as  to  have  them  convenient  for  any  par 
ties  that  might  call  that  night.  I  was  out 
by  the  wood-pile  when  Mrs.  Surratt  handed 
the  package  to  me.  I  prepared  two  bottles 
of  whisky,  according  to  her  directions. 

LIEUTENANT  ALEXANDER  LOVETT. 
For  the  Prosecution. — May  16. 

On  the  day  after  the  assassination  of  the 
President,  I  went  with  others  in  pursuit  of 
the  murderers.  We  went  by  way  of  Surratts- 
ville  to  the  house  of  Dr.  Samuel  A.  Mudd, 
which  is  about  thirty  miles  from  Washington, 
and  about  one-quarter  of  a  mile  or  so  off'  the 
road  that  runs  from  Bryantovvn,  arriving  there 


on  Tuesday,  the  18th  of  April.  Dr.  Mudd, 
whom  I  recognize  among  the  accused,  did 
not  at  first  seem  inclined  to  give  us  any  satis 
faction ;  afterward  he  went  on  to  state  that 
on  Saturday  morning,  at  daybreak,  two  stran 
gers  had  come  to  his  place;  one  of  them 
rapped  at  the  door,  the  other  remained  on 
his  liorse.  Mudd  went  down  p.nd  opened  the 
door,  and  with  the  aid  of  the  young  man 
who  had  knocked  at  the  door  helped  the 
other,  who  had  his  leg  broken,  off  his  horse, 
took  him  into  his  house  and  set  his  leg. 

On  asking  him  who  the  man  with  the 
broken  leg  was,  he  said  he  did  not  know; 
he  was  a  stranger  to  him.  The  other,  he 
said,  was  a  young  man,  about  seventeen  or 
eighteen  years  of  age.  Mudd  said  that  one 
of  them  called  for  a  razor,  which  he  fur 
nished,  together  with  soap  and  water,  and  the 
wounded  man  shaved  off  his  moustache. 
One  of  our  men  remarked  that  this  was  sus 
picious,  and  Dr.  Mudd  said  it  did  look  sus 
picious.  I  asked  him  if  he  had  any  other 
beard.  He  said,  "  Yes,  he  had  a  long  pair  of 
whiskers."  He  said  the  men  remained  there 
but  for  a  short  time,  and  1  understood  him 
that  they  left  in  the  course  of  the  morning. 
He  said  that  the  wounded  man  went  off  on 
crutches  that  he  (Mudd)  had  had  made  for 
him.  He  said  the  other  led  the  horse  of  the 
injured  man,  and  he  (Mudd)  showed  them 
the  way  across  the  swamp.  He  told  me  that 
he  had  heard,  at  church,  on  Sunday  morn 
ing,  that  the  President  had  been  assassinated, 
but  did  not  mention  by  whom.  We  were 
at  his  house  probably  an  hour,  and  to  the 
last  he  represented  that  those  men  were  en 
tire  strangers  to  him. 

It  was  generally  understood  at  this  time 
that  Booth  was  the  man  who  assassinated 
;he  President;  even  the  darkeys  knew  it;  and 
I  was  told  by  them  that  Bootl/had  been  there, 
and  that  he  had  his  leg  broken. 

On  Friday,  the  21st  of  April,  I  went  to  Dr. 
Mudd's  again,  for  the  purpose  of  arresting 
lim.  When  he  found  we  were  going  to  search 
,he  house,  he  said  something  to  his  wife,  and 
she  went  up  stairs  and  brought  down  a  boot 
Mudd  said  he  had  cut  it  off  the  man's  leg, 
n  order  to  set  the  leg.  I  turned  down  the 
,op  of  the  boot,  and  saw  the  name  "J. 
Wilkes"  written  in  it. 

I   called   Mudd's   attention    to    it,   and    he 

aid   he   had   not  taken  notice   of  it  before. 

Some   of  the  men  said  the  name  of  Booth 

vas  scratched  out,  but  I  said  that  the  name 

)f  Booth  had  never  been  written. 

[A  long  ruling  boot,  for  the  loft  foot,  slit  up  in  front  for 
,bout  eight  inches,  was  exhibited  to  the  witness.] 

That  is  the  boot. 

[The  boot  was  offered  in  evidence.] 

At  the  second  interview,  he  still  insisted 
hat  the  men  were  strangers  to  him.  1  made 
the  remark  to  him  that  his  wife  said  she 
had  seen  the  whiskers  detached  from  his 
face,  and  I  suppose  he  was  satisfied  then,  for 
he  subsequently  said  it  was  Booth.  After  we 


88 


THE    CONSPIRACY    TRIAL. 


left  his  house,  one  of  the  men  showed  him 
Booth's  photograph,  and  Mudd  remarked 
tha,t  it  did  not  look  like  Booth,  except  a  lit 
tle  across  the  eyes.  Shortly  after  that,  he 
said  he  had  an  introduction  to  Booth  in  No 
vember  or  December  last,  at  church,  from  a 
man  named  Johnson  or  Thompson.  On  be 
ing  questioned,  he  said  he  had  been  along 
with  Booth  in  the  country,  looking  up  some 
land,  and  was  with  him  when  he  bought  a 
horse  of  Esquire  Gardiner,  last  fall. 

Although  I  was  in  citizen's  clothes  at  the 
time,  and  addressed  no  threats  to  him,  Dr. 
Mudd  appeared  to  be  much  frightened  and 
anxious.  When  asked  what  arms  the  men 
had,  Dr.  Mudd  stated  that  the  injured  man 
had  a  pair  of  revolvers,  but  he  said  nothing 
about  the  other  having  a  carbine,  Or  either 
of  them  having  a  knife;  his  manner  was 
very  reserved  and  evasive. 

Cross-examined  by  MR.  EWING. 

At  the  time  that  Dr.  Mudd  was  describing 
to  me  the  "  two  strangers "  that  had  been 
to  his  house,  I  did  not  tell  him  of  my  track 
ing  Booth  from  Washington  ;  I  did  not  men 
tion  Booth's  name  at  all;  it  was  not  my  busi 
ness  to  tell  him  whom  I  was  after. 

On  my  second  visit.  Dr.  Mudd  was  out, 
and  his  wife  sent  after  him;  I  walked  down 
and  met  him.  I  was  accompanied  by  spe 
cial  officers  Simon  Gavacan,  Joshua  Lloyd, 
and  William  Williams.  After  we  entered  the 
house,  I  demanded  the  razor  that  the  man 
had  used.  It  was  not  until  after  we  had 
been  in  the  house  some  minutes,  and  one  of 
the  men  said  we  should  have  to  search  the 
house,  that  Dr.  Mudd  told  us  the  boot  had 
been  found,  and  his  wife  brought  it  to  us. 

I  asked  him  if  that  might  not  be  a  false 
whisker;  he  said  he  did  not  know.  I  asked 
this  because  Mrs.  Mudd  had  said  that  the 
whisker  became  detached  when  he  got  to  the 
foot  of  the  stairs.  The  Doctor  never  told  me 
that  he  had  Booth  up  stairs;  he  told  me  he 
was  on  the  sofa  or  lounge. 

Mudd  stated,  at  our  first  interview,  that 
the  men  remained  but  a  short  time;  after 
ward  his  wife  told  me  that  they  had  staid 
till  about  3  or  4  o'clock,  on  Saturday  after 
noon.  I  asked  Mudd  if  the  men  had  much 
money  about  them.  He  said  they  had  con 
siderable  greenbacks;  and,  in  this  connection, 
although  I  did  not  ask  him  if  he  had  been 
paid  for  setting  the  man's  leg,  he  said  it  was 
customary  to  make  a  charge  to  strangers  in 
such  a  case.  When  Dr.  Mudd  said  he  had 
shown  the  men  the  way  across  the  swamps, 
I  understood  him  to  refer  to  the  swamps  a 
thousand  yards  in  the  rear  of  his  own  house. 
He  told  us  that  the  men  went  to  the  Rev. 
Dr.  Wilmer's,  or  inquired  for  Parson  Wil- 
mer's;  that  he  took  them  to  the  swamps;  that 
they  were  on  their  way  to  Allen's  Fresh ; 
but  I  paid  no  attention  to  this  at  the  time, 
as  I  considered  it  was  a  blind  to  throw  us  off 
our  track.  We,  however,  afterward  searched ' 


Mr.  Wilmer's,  a  thing  I  did  not  like  to  do, 
as  I  knew  the  man  by  reputation,  and  was 
satisfied  it  was  unnecessary.  We  tracked 
the  men  as  far  as  we  could.  We  went  into 
the  swamp  and  scoured  it  all  over;  I  went 
through  it  half  a  dozen  times;  it  was  not  a 
very  nice  job  though.  I  first  heard  from 
Lieutenant  Dana  that  two  men  had  been  at 
Mudd's  house.  I  afterward  heard  from  Dr. 
George  Mudd  that  a  party  of  two  had  been 
at  Dr.  Samuel  Mudd's. 

Cross-examined  by  MR.  STONE. 

When  we  first  went  to  Dr.  Samuel  Mudd's 
house,  we  were  accompanied  by  Dr.  George 
Mudd,  whom  we  had  taken  from  Bryantown 
along  with  us.  Our  first  conversation  was 
with  the  Doctor's  wife.  When  we  asked  Dr. 
Mudd  whether  two  strangers  had  been  there, 
he  seemed  very  much  excited,  and  got  as 
pale  as  a  sheet  of  paper,  and  blue  about  the 
lips,  like  a  man  that  was  frightened  at  some 
thing  he  had  done.  Dr.  George  Mudd  was 
present  when  I  asked  if  two  strangers  had 
been  there.  He  had  spoken  to  Dr.  Samuel 
Mudd  previous  to  that.  He  admitted  that 
two  strangers  had  been  there,  and  gave  a 
description  of  them. 

In  my  first  interview  with  Mudd  on  the 
Tuesday,  I  did  not  mention  the  name  of  Booth 
at  all;  and  it  was  not  till  I  had  arrested  him, 
when  on  horseback,  that  he  told  me  he  was 
introduced  to  Booth  last  fall,  by  a  man 
named  Johnson  or  Thompson. 

LIEUTENANT  DAVID  D.  DANA. 

For  the  Prosecution. — May  20. 

On  Saturday,  the  day  after  the  assassina 
tion  of  the  President,  I.  sent  a  guard  of  four 
men  ahead  of  me  to  Bryantown,  and  they 
arrived  about  half  an  hour  before  me.  I 
arrived  there  about  1  o'clock.  I  cornmu- 

licated  the  intelligence  of  the  assassination, 
and  the  name  of  the  assassin,  to  the  citizens; 

t  spread  through  the  village  in  a  quarter  of 
an  hour.  Some  of  the  citizens  asked  me  if 
I  knew  for  a  certainty  it  was  J.  Wilkes 
Booth,  and  I  told  them  yes,  as  near  as  a 
person  could  know  any  thing. 

WILLIAM  WILLIAMS. 
For  the  Prosecution. — May  17. 

On  Monday,  the  17th  of  April,  in  com 
pany  with  some  cavalry,  I  proceeded  to  Sur- 
rattsville.  On  the  next  day,  Tuesday,  I  ar 
rived  at  Dr.  Mudd's.  He  was  not  at  home, 
and  his  wife  sent  for  him.  I  asked  if  any 
strangers  had  been  that  way,  and  lie  said 
here  had  not.  Some  of  the  officers  then 
talked  with  him.  I  think  he  stated  that  he 
irst  heard  of  the  assassination  of  the  Presi 
dent  at  church,  on  the  Sunday  morning.  He 
seemed  to  be  uneasy,  and  unwilling  to  give 
us  any  information  without  being  asked  di 
rectly. 


PURSUIT  AND    CAPTURE    OF    BOOTH    AND    IIEROLD. 


89 


On  Friday,  the  21st.  we  went  there  again 
for  the  purpose  of  arresting  Dr.  Mudd.  He 
was  not  at  home,  but  his  wife  sent  for  him. 
I  asked  him  concerning  the  two  men  who 
had  been  at  his  house,  one  of  them  having  a 
broken  leg.  He  then  said  that  they  had 
been  there.  I  asked  him  if  those  men  were 
not  Booth  and  Herold.  He  said  they  were 
not.  He  said  he  knew  Booth,  having  been 
introduced  to  him  last  fall  by  a  man  by  the 
name  of  Thompson,  I  believe. 

After  we  had  arrested  him,  and  were  on 
our  way  to  Bryantown,  I  showed  him  Booth's 
picture,  and  asked  him  if  that  looked  like 
the  man  who  had  his  leg  broken.  After 
looking  at  the  picture  a  little  while,  he  said 
it  did  not;  he  did  not  remember  the  features; 
after  awhile,  however,  he  said  it  looked 
something  like  Booth  across  the  eyes. 

At  our  second  visit  to  Dr.  Mudd's  house, 
[  informed  Mrs.  Mudd  that  we  had  to  search 
the  house  She  then  said 

Mr.  EWING.  You  need  not  state  what  Mrs. 
Mudd  said. 

The  JUDGE  ADVOCATE.  Any  thing  that  was 
said  in  Dr.  Mudd's  presence  is  admissible. 

The  witness  continued.  This  was  said,  1 
believe,  in  Dr.  Mudd's  presence.  She  said 
that  the  man  with  the  broken  leg  had  left 
his  boot  in  the  bed.  She.  then  went  and 
brought  the  boot  down.  It  was  a  long  rid 
ing-boot,  with  '%  J.  Wilkes"  and  the  maker's 
name,  "  Broadway,  N.  Y.,"  written  inside. 
The  boot  was  cut  some  ten  inches  from  the 
instep. 

Dr.  Mudd  said  that  the  men  had  arrived 
before  daybreak,  and  that  they  went  away 
on  foot  between  3  and  4  o'clock  on  the  af 
ternoon  of  Saturday.  He  had  set  the  man's 
leg,  and  had  had  crutches  made  for  him  by 
one  of  his  men. 

Cross-examined  by  MR.  STONE. 

Lieutenant  Lovett  was  present  at  this  con 
versation.  I  believe  it  was  on  Friday  that 
Dr.  Mudd  said  that  the  first  knowledge  he 
had  of  the  assassination  was  received  at 
church  on  the  Sunday  before.  I  asked  him 
the  question  on  Friday,  if  "two  strangers" 
had  been  there.  He  said  that  there  had 
been.  Two  men  had  come  there  at  day 
break;  one,  a  smooth-faced  young  man,  ap 
parently  seventeen  or  eighteen  years  of  age, 
and  that  he  had  set  the  leg  of  one  of  them. 
They  had  come  to  his  door  and  knocked, 
and  he  had  looked  out  of  the  window  up 
stairs,  and  asked  them  who  they  were.  I 
believe  he  said  their  reply  was  that  they 
were  friends,  and  wanted  to  come  in.  Dr. 
Mudd  then  came  down  stairs,  and,  with  the 
assistance  of  the  young  man,  got  the  wounded 
man  off  his  horse  into  the  parlor,  and  ex 
amined  his  leg  on  the  sofa.  The  wounded 
man  had  a  moustache,  lie  said,  and  pretty 
long  chin-whiskers.  I  asked  him  if  he 
thought  the  whiskers  were  natural.  He 
said  he  could  not  tell.  The  injured  man 


had  a  shawl  round  his  shoulders.  Dr.  Mudd 
said  that  on  leaving  they  asked  him  the 
road  to  Parson  Wilmer's,  and  that  he  had 
shown  them  the  way  down  to  the  swamp. 
I  did  not  pay  much  attention  to  their  going 
to  Parson  Wilmer's  at  first,  because  1 
thought  it  was  to  throw  us  off  the  track; 
but  we  followed  the  road  as  far  as  we 
could,  after  which  we  divided  ourselves,  and 
went  all  through  the  different  swamp  roads. 
The  road  is  not  much  frequented.  We  found 
horses'  tracks,  but  not  sifch  as  satisfied  me 
that  they-  were  the  tracks  of  these  men,  and 
we  heard  nothing  of  them  on  the  road.  We 
got  to  the  Rev.  Mr.  Wilmer's,  I  think,  on 
the  Wednesday  evening.  We  were  acting 
under  the  orders  of  Major  O'Beirne,  and 
Lieutenant  Lovett  had  charge  of  our  squad. 

SIMON  GAYACAN. 
For  the  Prosecution. — May  17. 

I  was  at  Dr.  Mudd's  house  on  the  fore 
noon  of  Tuesday,  the  18th  of  April,  in  pur 
suit  of  the  murderers  of  the  President.  We 
inquired  if  two  men  passed  there  on  the 
Saturday  morning  after  the  assassination, 
and  Dr.  Mudd  said  no.  Then  we  inquired 
more  particularly  if  two  men  had  been  there, 
one  having  his  leg  fractured.  He  said  yes. 
In  answer  to  our  questions,  he  told  ua  that 
they  had  come  about  4,  or  half-past  4,  on 
Saturday  morning,  and  rapped  at  his  door; 
that  he  was  a  little  alarmed  at  the  noise,  but 
came  down  and  let  them  in;  that  he  and  the 
other  person  assisted  the  man  with  the 
broken  leg  into  the  house,  and  that  he  at 
tended  to  the  fractured  leg  as  wrell  as  he 
could,  though  he  had  not  much  facilities  for 
doing  so.  I  believe  he  said  the  wounded 
person  staid  on  the  sofa  for  awhile,  and  after 
that  was  taken  up  stairs,  and  remained 
there  until  between  3  and  5  o'clock  in  the 
afternoon  of  Saturday.  He  said  that  he 
went  out  with  the  other  man  to  find  a  buggy 
to  take  away  the  wounded  man,  but  could 
not  get  one.  I  understood  him  to  say  that 
on  leaving  his  house  they  first  inquired  the 
road  to  Allen's  Fresh,  and  also  to  the  Rev. 
Dr.  Wilmer'e,  and  that  he  took  them  part 
of  the  way  to  show  them  the  road.  He  told 
is  he  did  not  know  the  persons  at  all. 

On  Friday,  the  21st,  we  went  to  Dr. 
Mudd's  again,  for  the  purpose  of  arrest- 
ng  him  and  searching  his  house.  He  was 
not  in,  but  his  wife  sent  for  him.  When 
tie  came,  we  told  him  that  we  would  have 
;o  search  his  house.  His  wife  then  went  up 
stairs  and  brought  down  a  boot  and  a  razor, 
[nside  the  leg  of  the  boot  we  found  the 
words,  "  J.  Wilkes."  We  asked  him  if  he 
thought  that  was  Booth,  and  he  said  he 
thought  not.  He  said  the  man  had  whis 
kers  on,  but  that  he  thought  he  shaved  off 
his  moustache  up  stairs.  When  we  inquired 
of  him  if  he  knew  Booth,  he  said  that  he 
was  introduced  to  him  last  fall  by  a  man 


90 


THE    CONSPIRACY   TRIAL. 


named  Thompson,  but  he   thought  the  man 
who  had  been  there  was  not  Booth. 

Cross-examined  by  MR.  EWING. 

Our  conversation  with  Dr.  Mudd  lasted 
probably  an  hour.  He  was  asked  questions 
by  all  of  us.  Lieutenant  Lovett  was  there 
all  the  time.  When  Mrs.  Mudd  brought 
down  the  boot  and  razor,  we  thought  we 
had  satisfactory  evidence  that  Booth  and 
llerold  had  been  there,  and  did  not  search 
the  house  further.  I  believe  there  was  a 
photograph  of  Booth  shown  to  Dr.  Mudd 
on  Tuesday,  and  he  said  he  did  not  rec 
ognize  it,  but  said  there  was  something 
about  the  forehead  or  the  eyes  that  resem 
bled  one  of  the  parties. 

JOSHUA  LLOYD. 
For  the  Prosecution. — May  16. 

I.  was  engaged  with  others  in  the  pursuit 
of  the  murderers  of  the  President  in  the  di 
rection  of  Surrattsville.  We  got  to  Dr. 
Mudd's  on  Tuesday,  the  18th.  1  asked  him 
if  he  had  not  heard  of  the  President  being 
assassinated;  he  said  yes.  I  then  asked  him 
if  he  had  seen  any  of  the  parties — Booth, 
Herold,  or  Surratt;  he  said  he  had  never 
seen  them. 

On  Friday,  the  21st,  at  the  second  inter 
view,  he  said  two  men  came  there  about  4 
o'clock  on  the  Saturday  morning,  and  re 
mained  there  until  about  4  in  the  afternoon. 
They  came  on  horseback ;  one  of  them  had 
a  broken  leg,  and  when  they  left  his  house 
one  was  riding  and  the  other  walking,  lead 
ing  his  horse. 

As  we  were  sitting  in  the  parlor,  Mrs.  Mudd 
seemed  very  much  worried,  so  did  the  Doc 
tor,  and  he  seemed  to  be  very  much  excited. 
At  this  interview  Lieutenant  Lovett  and  Mr. 
Williams  did  most  of  the  talking;  I  was  not 
well.  Dr.  Mudd  said  that  he  had  been  in 
company  with  Booth;  that  he  had  been  in 
troduced  to  him  by  a  man  named  Thomp 
son,  1  think  he  said,  at  church.  He  offered 
no  explanation  of  his  previous  denial.  When 
the  men  left,  he  said  they  went  up  the  hill 
toward  Parson  Wilmer's,  and  I  think  he  said 
he  showed  them  the  road.  I  understood 
him  to  say  that  the  man's  leg  was  broken 
by  the  fall  of  the  horse. 

Cross-examined  by  MR.  STONE. 

It  was  late  on  Tuesday  evening  when  we 
were  there.  Each  time  that  we  went  to  his 
house  Dr.  Mudd  was  out,  but  not  far  away, 
for  he  was  not  long  in  returning  with  the 
messenger  sent  for  him.  At  the  first  inter 
view,  1  asked  if  any  strangers  had  passed 
that  way,  and  then  if  Booth  and  llerold  had 
passed ;  I  described  them  to  him,  and  the 
horses  they  rode,  and  he  denied  either  that 
any  strangers  or  Booth  and  llerold  had 
passed.  The  interview  only  lasted  a  few 
minutes. 


Booth's  portrait  was  shown  to  Dr.  Mudd. 
He  told  us  that  Booth  had  been  down  there 
last  fall,  when  he  was  introduced  to  him  by 
Mr.  Thompson.  I  think  he  said  Booth  was 
there  to  buy  some  property. 

Before  he  came  to  the  house,  Mrs.  Mudd 
brought  us  the  boot,  and  when  the  Doctor 
saw  that  we  had  the  boot,  he  admitted  that 
Booth  had  been  there.  Dr.  Mudd  then 
brought  the  razor  down  himself,  and  gave  it 
to  Lieutenant  Lovett. 

WILLIE  S.  JETT. 
For  the  Prosecution. — May  17. 

I  was  formerly  a  member  of  the  Ninth 
Virginia  Cavalry.  More  recently,  I  was  sta 
tioned  in  Caroline  County,  Virginia,  as  com 
missary  agent  of  the  Confederate  State.s  Gov 
ernment.  1  was  on  my  way  from  Fauquier 
County  (where  I  had  been  with  Mosby's 
command)  to  Caroline  County,  Virginia,  in 
company  with  Lieutenant  Ruggles  and  a 
young  inan  named  Bainbridge.  At  Port 
Conway,  on  the  Rappahannock,  I  saw  a 
wagon  down  on  the  wharf,  at  the  ferry,  on 
the  Monday  week  after  the  assassination  of 
President  Lincoln.  A  young  man  got  out  of 
it,  came  toward  us,  and  asked  us  what  com 
mand  we  belonged  to.  We  were  all  dressed 
in  Confederate  uniform.  Lieutenant  Ruggles 
said,  "  We  belong  to  Mosby's  command." 
He  then  said,  "If  I  am  not  inquisitive,  can 
I  ask  where  you  are  going?"  I  spoke,  then, 
and  replied,  "That's  a  secret,  where  we  are 
going."  After  this  we  went  back  on  the 
wharf,  and  a  man  with  crutches  got  out  of 
the  wagon.  One  of  us  asked  him  what  com 
mand  he  belonged  to,  and  he  replied,  "  To 
A.  P.  Hill's  corps."  Herold  told  us  their 
name  was  Boyd ;  that  his  brother  was  wounded 
below  Petersburg,  and  asked  if  we  would 
take  him  out  of  the  lines.  We  did  not  tell 
him  where  we  were  going.  Herold  asked  ua 
to  go  and  take  a  drink,  but  we  declined.  We 
then  rode  up  to  the  house  there,  and  having 
tied  our  horses,  we  all  sat  down.  After  we. 
had  talked  a  very  short  time,  Herold  touched 
me  on  the  shoulder  and  said  he  wanted  to 
speak  to  me;  he  carried  me  down  to  the 
wharf,  and  said,  "  I  suppose  you  are  raising 
a  command  to  go  South?"  and  added  that 
he  would  like  to  go  along  with  us.  At 
length  I  said,  "  I  can  not  go  with  any  man 
that  I  do  n't  know  any  thing  about.'1  He 
seemed  very  much  agitated,  and  then  re 
marked,  "  We  are  the  assassinators  of  the 
President."  I  was  so  much  confounded  that 
I  did  not  make  any  reply  then  that  I  remem 
ber.  Lieutenant  Ruggles  was  very  near, 
watering  his  horse;  1  called  to  him,  and  he 
came  there,  and  either  llerold  or  myself  re 
marked  to  Lieutenant  Ruggles  that  they  were 
the  assassinators  of  the  President.  Booth 
then  came  up,  and  Herold  introduced  himself 
to  us,  and  then  introduced  Booth.  llerold 
passed  himself  off  to  us  first  as  Boyd,  and 


PURSUIT  AND  CAPTURE  OF  BOOTH  AND  HEROLD. 


91 


said  he  wanted  to  pass  under  that  name,  j 
lie  afterward  told  us  their  true  names  were 
Ilerold  and  Booth,  but  they  kept  the  name 
of  Boyd.  Booth,  I  remember,  had  on  his 
hand  "  J.  W.  B."  We  went  back  then  to 
the  house,  and  sat  down  there  some  time  on 
the  steps.  Then  we  went  across  the  river. 
Booth  rode  Ruggles's  horse.  Ilerold  was 
walking.  When  we  got  on  the  other  side  of 
the  river,  before  they  got  out  of  the  boat,  I 
got  on  my  horse  and  rode  up  to  Port  Royal, 
went  into  a  house,  and  saw  a  lady.  I  asked 
her  if  she  could  take  in  a  wounded  Confed 
erate  soldier,  just  as  he  represented  himself  to 
me,  for  two  or  three  days.  She  at  first  con 
sented;  then  afterward  she  said  she  could 
not.  I  walked  across  the  street  to  Mr.  Cat- 
litt's,  but  he  was  not  at  home.  We  then 
went  on  up  to  Mr.  Garrett's,  and  there  we  left 
Booth.  Ilerold  and  all  of  us  went  on  up  the 
road,  then,  to  within  a  few  miles  of  Bowling 
Green.  Bain  bridge  and  Ilerold  went  to  Mrs. 
Clark's,  and  Ruggles  and  myself  to  Bowling 
Green.  The  next  day  Herold  came  to  Bow 
ling  Green,  spent  the  day,  had  dinner,  and] 
left  in  the  evening,  and  that  was  the  last 
I  saw  of  him,  except  the  night  that  they 
were  caught,  when  I  went  down  there;  I  saw 
him  the  next  morning  in  the  custody  of  the 
officers.  I  recognize  the  prisoner  Herold  as 
the  man  that  I  saw  with  Booth. 

Cross-examined  by  MR.  STONE. 

Herold  said  he  wanted  us  to  help  in  get 
ting  Booth  further  South,  but  we  had  no  fa 
cilities;  and  he  seemed  a  good  deal  disap 
pointed  after  we  made  known  our  real  object, 
that  we  were  going  on  a  visit.  Booth  was 
not  present  when  Herold  told  me  they  were 
the  assassinators  of  the  President;  when  he 
came  up,  he  said  he  would  not  have  told, 
that  he  did  not  intend  telling.  Herold  did 
not  appear  very  self-possessed;  his  voice 
trembled  very  much,  and  he  was  a  good  deal 
agitated.  His  language  was,  "  We  are  the 
assassinators  of  the  President;"  and  then, 
"pointing  back  to  where  Booth  was  standing, 
he  said,  "Yonder  is  J.  Wilkes  Booth,  the 
man  who  killed  the  President,"  or  he  may 
have  said  "Lincoln."  I  have  never  taken 
the  oath  of  allegiance,  but  am  perfectly  will 
ing  to  take  it.  . 

EVERTON  J.  CONGER. 
For  the  Prosecution. — May  17. 

I  assisted  in  the  pursuit  of  the  murderers 
of  the  President. 

JUDGE  ADVOCATE.  Will  you  please  take  up 
the  narrative  of  the  pursuit  at  the  point  where 
you  met  with  Willie  Jett,  and  state  what  oc 
curred  until  the  pursuit  closed. 

WITNESS.  On  the  night  of  thp  capture,  I 
found  Jett  in  bed  in  a  hotel  in  Bowling  Green. 
I  told  him  to  get  up;  that  I  wanted  him.  He 
put  on  his  pants,  and  came  out  to  me  in  the 
front  part  of  the  room.  I  said,  "Where  are 


the  two  men  who  came  with  you  across  the 
river?"  He  came  up  tome  and  said,  "Can  I 
see  you  alone?"  1  replied,  "Yes,  sir,  you 
can."  Lieutenant  Baker  and  Lieutenant 
Doherty  were  with  me.  I  asked  them  to  go 
out  of  the  room.  After  they  were  gone,  he 
reached  out  his  hand  to  me  and  said,  "  I  know 
who  you  want,  and  I  will  tell  you  where  they 
can  be  found."  Said  I,  "  That's  what  I  want 
to  know."  He  said,  "  They  are  on  the  road 
to  Port  Royal,  about  three  miles  this  side  of 
that."  "  At  whose  house  are  they  ?"  I  asked. 
"Mr.  Garrett's,"  he  replied;  "I  will  go  there 
with  you  and  show  you  where  they  are  now, 
and  you  can  get  them."  I  said,  "  Have  you  a 
horse  ?  "  "  Yes,  sir."  "  Get  it,  and  get  ready 
to  go."  I  said  to  him,  "You  say  they  are  on 
the  road  to  Port'Royal  ?  "  "  Yes",  sir."  I  said 
to  him,  "  I  have  just  come  from  there."  He 
stopped  a  moment,  and  seemed  to  be  consider 
ably  embarrassed.  Said  he,  "  I  thought  you 
came  from  Richmond.  If  you  have  come  that 
way,  you  have  come  past  them.  I  can  not 
tell  you  whether  they  are  there  now  or  not." 
I  said  it  did  not  make  any  difference;  we 
would  go  back  and  see.  He  dressed;  had  his 
horse  saddled;  we  gathered  the  party  around 
the  house  together,  and  went  back  to  Mr. 
Garrett's  house.  Just  before  we  got  to  the 
house,  Jett,  riding  with  me,  said,  "We  are 
very  near  now  to  where  we  go  through  ;  let  us 
stop  here  and  look  around."  He  and  I  rode 
on  together.  I  rode  forward  to  find  the  gate 
that  went  through  to  the  house,  and  sent 
Lieutenant  Baker  to  open  another.  I  went 
back  for  the  cavalry,  and  we  rode  rapidly  up 
to  the  house  and  barn,  and  stationed  the  men 
around  the  house  and  quarters. 

I  went  to  the  house  and  found  Lieutenant 
Baker  at  the  door,  telling  somebody  to  strike 
a  light  and  come  out.  I  think  the  door  was 
open  when  I  got  there.  The  first  individual 
we  saw  was  an  old  man,  whose  name  was  said 
to  be  Garrett.  I  said  to  him,  "  Where  are 
the  two  men  who  stopped  here  at  your 
house?"  "  They  have  gone."  "Gone  where?" 
"Gone  to  the  woods.'  "Well,  sir,  where 
abouts  in  the  woods  have  they  gone?"  He_ 
then  commenced  to  tell  me  that  they  came 
there  without  his  consent;  that  he  did  not 
want  them  to  stay.  I  said  to  him,  "I  do  not 
want  any  long  story  out  of  you;  I  just  want 
to  know  where  these  men  have  gone."  He 
commenced  over  again  to  tell  me,  and  I  turned 
to  the  door  and  said  to  one  of  the  men, 
"Bring  in  a  lariat  rope  here,  and  I  will  put 
that  man  up  to  the  top  of  one  of  those  locust 
trees."  He  did  not  seem\  inclined  to  tell. 
One  of  his  sons  then  came  in  and  said,  "  Do  n't 
hurt  the  old  man;  he  is  scared;  I  will  tell 
you  where  the  men  are  you  want  to  find." 
Said  I,  "That  is  what  I  want  to  know;  where 
are  they?"  He  said.  "In  the  barn." 

We  then  left  the  house  immediately  and 
went  to  the  barn,  and  stationed  the  remaining 
part  of  the  men.  As  soon  as  I  got  there,  I 
heard  somebody  walking  around  inside  on  the 


92 


THE    CONSPIRACY   TEIAL. 


hay.  By  that  time  another  Garrett  had  come 
from  somewhere;  and  Lieutenant  Baker  said 
to  one  of  them,  "  You  must  go  in  the  barn 
and  get  the  arms  from  those  men."  I  think 
he  made  some  objection  to  it;  I  do  not  know 
certainly.  Baker  said,  "  They  know  you,  and 
you  can  go  in."  Baker  said  to  the  men  inside, 
u  We  are  going  to  send  this  man,  on  whose 
premises  you  are,  in  to  get  your  arms,  and  you 
must  come  out  and  deliver  yourselves  up."  I 
do  not  think  there  was  any  thing  more  said. 
Garrett  went  in,  and  he  came  out  very  soon 
and  said,  "  This  man  says  '  Damn  you,  you 
have  betrayed  me,'  and  threatened  to  shoot 
me."  I  said  to  hirn,  "  How  do  you  know  he 
was  going  to  shoot  you?"  Said  he,  "He 
reached  down  to  the  hay  behind  him  to  get 
his  revolver,  and  I  came  out."  I  then  directed 
Lieutenant  Baker  to  tell  them  that  if  they 
would  come  out  and  deliver  themselves  up, 
very  well;  if  not,  in  five  minutes  we  would 
set  the  barn  on  fire.  Booth  replied  :  "Who 
are  you;  what  do  you  want;  whom  do  you 
want?"  Lieutenant  Baker  said,  "  We  want 
you,  and  we  know  who  you  are;  give  up  your 
arms  and  come  out."  I  say  Booth;  for  I 
presumed  it  was  he.  He  replied,  "  Let  us 
have  a  little  time  to  consider  it."  Lieuten 
ant  Baker  said,  "Very  well;"  and  some  ten 
or  fifteen  minutes  probably  intervened  between 
that  time  and  any  thing  further  being  said. 
He  asked  again,  "  Who  are  you,  and  what  do 
you  want  ?  "  I  said  to  Lieutenant  Baker,  "  Do 
not  by  any  remark  made  to  him  allow  him  to 
know  who  we  are;  you  need  not  tell  him  who 
we  are.  If  he  thinks  we  are  rebels,  or  thinks 
we  are  his  friends,  we  will  take  advantage  of 
it ;  we  will  not  lie  to  him  about  it,  but  we  need 
not  answer  any  questions  that  have  any  refer 
ence  to  that  subject,  but  simply  insist  on  his 
coming  out,  if  he  will."  The  reply  was  made 
to  him,  "It  don't  make  any  difference  who 
we  are;  we  know  who  you  are,  and  we  want 
you;  we  want  to  take  you  prisoners."  Said 
he,  "This  is  a  hard  case;  it  may  be  I  am  to 
be  taken  by  my  friends."  Some  time  in  the 
conversation  he  said,  "Captain,  I  know  you 
to  be  a  brave  man,  and  I  believe  you  to  be 
honorable;  I  am  a  cripple.  I  have  got  but 
one  leg;  if  you  will  withdraw  your  men  in 
'line'  one  hundred  yards  from  the  door,  I  will 
come  out  and  fight  you."  Lieutenant  Baker 
replied  that  he  did  not  come  there  to  fight; 
we  simply  came  there  to  make  him  a  prisoner ; 
we  did  not  want  any  fight  with  him.  Once 
more  after  this  he  said,  "If  you'll  take  your 
men  fifty  yards  from  the  door,  I'll  come  out 
and  fight  you  ;  give  me  a  chance  for  my  life." 
The  same  reply  was  made  to  him.  His  answer 
to  that  was,  in  a  singular  theatrical  voice, 
"  Well,  my  brave  boys,  prepare  a  stretcher  for 
me." 

Some  time  passed  before  any  further  con 
versation  was  held  with  him.  In  the  mean 
time  I  requested  one  of  the  Garretts  to  pile 
some  brush  upagainstthe  corner  of  the  barn — 
pine  boughs.  lie  put  some  up  there,  and  after 


awhile  came  to  me  and  said,  "This  man  in 
side  says  that  if  I  put  any  more  brush  in 
there  he  will  put  a  ball  through  me."  "  Very 
well,"  said  I,  "you  need  not  go  there  again." 
After  awhile  Booth  said,  "There's  a  man  in 
here  wants  to  come  out."  Lieutenant  Baker 
said  u  Very  well ;  let  him  hand  his  arms  out, 
and  come  out."  Some  considerable  talk 
passed  in  the  barn;  some  of  it  was  heard, 
some  not.  One  of  the  expressions  made  use 
of  by  Booth  to  Herold,  who  was  in  the  barn, 
was,  "  You  damned  coward,  will  you  leave 
me  now?  Go,  go;  I  would  not  have  you 
stay  with  me."  Some  conversation  ensued  be 
tween  them,  which  I  supposed  had  reference 
to  the  bringing  out,  of  the  arms,  which  was 
one  of  the  conditions  on  which  Herold  was  to 
come  out.  It  was  not  heard  ;  we  could  simply 
hear  them  talking.  He  came  to  the  door  and 
said,  "  Let  me  out."  Lieutenant  Baker  said 
to  him,  "Hand  out  your  arms."  The  reply 
was,  "  I  have  none."  He  said,  "  You  carried 
a  carbine,  and  you  must  hand  it  out."  Booth 
replied,  "The  arms  are  mine,  and  I  have  got 
them."  Lieutenant  Baker  said,  "This  man 
carried  a  carbine,  and  he  must  hand  it  out." 
Booth  said,  "Upon  the  word  and  honor  of  a 
gentleman,  he  has  no  arms;  the  arms  are 
mine,  and  I  have  got  them."  I  stood  by  the 
side  of  the  Lieutenant  and  said  to  him, 
"Never  mind  the  arms;  if  we  can  get  one  of 
the  men  out,  let  us  do  it,  and  wait  no  longer." 
The  door  was  opened,  he  stuck  out  his  hands  ; 
Lieutenant  Baker  took  hold  of  him,  brought 
hirn  out,  and  passed  him  to  the  rear.  I  went 
around  to  the  corner  of  the  barn,  pulled  some 
hay  out,  twisted  up  a  little  of  it,  about  six 
inches  long,  set  fire  to  it,  and  stuck  it  back 
through  on  top  of  the  hay.  It  was  loose, 
broken-tip  hay,  that  had  been  trodden  upon 
the  barn-tioor.  It  was  very  light,  and  blazed 
very  rapidly — lit  right  up  at  once. 

I  put  my  eye  up  to  the  crack  next  to  the 
one  the  fire  was  put  through,  and  looked  in, 
and  I  heard  something  drop  on  the  floor, 
which  I  supposed  to  be  Booth's  crutch.  He 
turned  around  toward  me.  When  I  first  got 
a  glimpse  of  him,  he  stood  with  his  back 
partly  to  me,  turning  toward  the  front  door.  He 
came  back  within  five  feet  of  the  corner  of 
the  barn.  The  only  thing  I  noticed  he  had 
in  his  hands  when  he  came  was  a  carbine, 
He  came  back,  and  looked  along  the  cracks, 
one  after  another,  rapidly.  He  could  not  see 
any  thing.  He  looked  at  the  fire,  and  from 
the  expression  of  his  face,  I  am  satisfied  he 
looked  to  see  if  he  could  put  it  out,  and 
was  satisfied  that  he  could  not  do  it;  it  was 
burning  so  much.  He  dropped  his  arm,  re 
laxed  his  muscles,  turned  around,  and  start 
ed  for  the  door  at  the  front  of  the  barn.  I 
ran  around  to  the  other  side,  and  when 
about  half  round  I  heard  the  report  of  a 
pistol.  I  went  right  to  the  door,  and  went 
into  the  barn  and  found  Lieutenant  Baker 
looking  at  Booth,  holding  him,  or  raising 
him  up,  I  do  not  know  which.  I  said  to 


PURSUIT    AND    CAPTURE    OF    BOOTH    AND    IIEROLD. 


93 


him,  "He  shot  himself."  Said  lie,  "  No,  lie 
did  not,  either."  Said  I,  "Whereabouts  is  lie 
sh0t — in  the  head  or  neck?"  I  raised  him 
then,  and  looked  on  the  right  side  of  the 
neck,  and  saw  a  place  where  the  blood  was 
running  out.  I  said,  "Yes,  sir;  he  shot 
himself."  Lieutenant  Baker  replied  very  earn 
estly  that  he  did  not.  I  then  said,  "  Let  us 
carry  him  out  of  here;  this  will  soon  he 
burning."  We  took  him  up  and  carried  him 
out  on  the  grass,  underneath  the  locust-trees, 
a  little  way  from  the  door.  I  went  back 
into  the  barn  immediately  to  see  if  the  fire 
could  be  put  down,  and  tried  somewhat  my 
self  to  put  it  out,  but  I  could  not;  it  was 
burning  so  fast,  and  there  was  no  water  and 
nothing  to  help  with.  I  then  went  back. 
Before  this,  I  supposed  him  to  be  dead.  He 
had  all  the  appearance  of  a  dead  man ;  but 
when  I  got  back  to  him,  his  eyes  and  mouth 
were  moving.  I  called  immediately  for  some 
water,  and  put  it  on  his  face,  and  he  somewhat 
revived,  and  attempted  to  speak.  I  put  my 
ear  down  close  to  his  mouth,  and  he  made 
several  efforts  to  speak,  and  finally  I  under 
stood  him  to  say,  "Tell  mother  I  die  for  my 
country."  I  said  to  him,  "Is  that  what  you 
Bay?"  repeating  it  to  him.  He  said,  "Yes." 
They  carried  him  from  there  to  the  porch  of 
Mr.  'Garrett's  house,  and  laid  him  on  an  old 
straw  bed,  or  tick,  or  something.  By  that  time 
he  revived  considerably;  he  could  then  talk  in 
a  whisper,  so  as  to  be  intelligibly  understood  ; 
he  could  not  speak  above  a  whisper.  He 
wanted  water;  we  gave  it  to  him.  He  wanted 
to  be  turned  on  his  face.  I  said  to  him, 
"  You  can  not  lie  on  your  face ;  "  and  he  want 
ed  to  be  turned  on  his  side;  we  turned  him 
upon  his  side  three  times,  I  think,  but  he 
could  not  lie  with  any  comfort,  and  wanted 
to  be  turned  immediately  back.  He  asked 
me  to  put  my  hand  on  his  throat  and  press 
down,  which  I  did,  and  he  said,  "Harder." 
I  pressed  down  as  hard  as  I  thought  neces 
sary,  and  he  made  very  strong  exertions  to 
cough,  but  was  unable  to  do  so — no  muscu 
lar  exertion  could  he  make.  I  supposed  he 
thought  something  was  in  his  throat,  and  I 
said  to  him,  "  Open  your  mouth  and  put  out 
your  tongue,  and  I  will  see  if  it  bleeds." 
Which  he  did.  I  said  to  him,  "There  is  no 
blood  in  your  throat;  it  has  not  gone  through 
any  part  of  it  there."  He  repeated  two  or 
three  times,  "  Kill  me,  kill  me."  The  reply 
was  made  to  him,  "We  don't  want  to  kill 
you;  we  want  you  to  get  well."  I  then  took 
what  things  were  in  his  pockets,  and  tied 
them  up  in  a  piece  of  paper.  He  was  not 
then  quite  dead.  He  would — once,  perhaps, 
in  five  minutes — gasp;  his  heart  would  al 
most  die  out,  and  then  it  would  commence 
again,  and  by  a  few  rapid  beats  would  make 
a  slight  motion.  I  left  the  body  and  the 
prisoner  Herold  in  charge  of  Lieutenant 
Baker.  I  told  him  to  wait  an  hour  if  Booth 
was  not  dead;  if  he  recovered,  to  wait  there 
and  send  over  to  Belle  Plain  for  a  surgeon 


from  one  of  the  gun-ships;  and,  if  he  died 
in  the  space  of  an  hour,  to  get  the  best  con 
veyance  he  could,  and  bring  him  on. 

I  staid  there  some  ten  minutes  after  that 
was  said,  when  the  doctor  there  said  he  was 
dead. 

f  A  knife,  pair  of  pistols,  belt,  holster,  file,  pocket  com 
pass,  spur,  pipe,  carbine,  cartridges,  and  bills  of  exchange 
were  shown  to  the  witness.] 

That  is  the  knife,  belt,  and  holster  taken 
from  Booth  ;  the  pistols  I  did  not  examine 
with  any  care,  but  they  looked  like  these. 
That  is  the  pocket  compass,  with  the  candle 
grease  on  it,  just  as  we  found  it;  the  spur  I 
turned  over  to  Mr.  Stanton,  and  I  judge  this 
to  be  the  one  taken  from  Booth.  That  is 
the  carbine  we  took ;  it  is  a  Spencer  rifle, 
and  has  a  mark  on  the  breech  by  which  I 
know  it.  Both  the  pistols  and  carbine  were 
loaded.  I  unloaded  the  carbine  myself  in 
Mr.  Secretary  Stanton's  office,  and  these  are 
the  cartridges  that  I  took  out;  there  was  one 
in  the  barrel,  and  the  chamber  was  full. 
These  are  the  bills  of  exchange;  I  put  my 
initials  on  them. 

[All  these  articles  were  put  in  evidence;  also  the  bill  of 
exchange  in  triplicate.  The  first  of  the  set  was  read  aa 
follows :] 

No.  1492.  THE  ONTARIO  BANK, 

[Stamp.]  Montreal  Branch. 

EXCHANGE  FOR  £61  12s.  lOd. 

Montreal,  27  Oct'r,  1864 

Sixty  days  after  sight  of  this  first  of  exchange,  (second 
and  third  of  the  same  tenor  and  date  unpaid,)  pay  to  the 
order  of  J.  Wilkes  Booth  sixty-one  pounds  twelve  shil 
lings  and  ten  pence  sterling.  Value  received,  and  charge 
to  acc't  of  this  office. 
To  Messrs.  Glyun  Mills  &  Co.,  London. 

[Signed]          II.  STANUS,  MANAGER. 

The  farm  of  Mr.  Garrett,  in  whose  barn 
Booth  was  captured  and  killed,  is  in  Caroline 
County,  Va.,  about  three  miles  from  Port 
Royal,  on  the  road  to  Bowling  Green. 

I  had  seen  John  Wilkes  Booth  in  Wash 
ington,  and  recognized  the  man  who  was 
killed  as  the  same.  I  had  before  remarked 
his  resemblance  to  his  brother,  Edwin  Booth, 
whom  I  had  often  seen  play. 

I  recognize  among  the  accused,  the  man 
Herold,  whom  we  took  prisoner  on  that  oc 
casion,  in  the  barn.  We  found  on  Herold  a 
small  piece  of  a  school  map  of  Virginia, 
embracing  the  region  known  as  the  Northern 
Neck,  where  they  were  captured. 

Cross-examined  by  MR.  STONE. 

We  found  no  arms  on  Herold.  He  had 
some  conversation  with  Booth  while  in  the 
barn,  in  which  Booth  called  him  a  coward; 
and  when  the  question  of  delivering  up  the 
arms  was  raised,  Booth  said  that  the  arms 
were  all  his.  When  Booth  said,  "There  is 
a  man  in  here  who  wants  to  get  out,"  I 
think  he  added,  "who  had  nothing  to  do 
with  it." 

I  think  we  got  to  Garrett's  barn  about  2 
o'clock  in  the  morning,  and  it  was  about 
fifteen  minutes  past  3  that  Booth  was  shot 
and  carried  out  on  the  grass. 


THE    CONSPIRACY   TRIAL. 


SEUG'T  BOSTON  CORBETT. 
For  the  Prosecution, — May  17. 

THE  JUDGE  ADVOCATE.  Conger  has  just  de 
tailed  to  the  Commission  the  circumstances 
connected  with  the  pursuit,  capture  and  kill 
ing  of  Booth,  in  which,  I  believe,  you  were 
engaged.  I  will  ask  you  to  state  what  part 
you  took  in  the  capture  and  killing  of  Booth, 
taking  up  the  narrative  at  the  point  when  you 
arrived  at  the  house. 

Sergeant.  BOSTON  CORBETT.  When  we  rode 
up  to  the  house,  my  commanding  officer,  Lieu 
tenant  Doherty,  told  me  that  Booth  was  in 
that  house,  saying,  "  I  want  you  to  deploy  the 
men  right  and  left  around  the  house,  and  see 
that  no  one  escapes."  Which  was  done.  After 
making  inquiries  at  the  house,  it  was  found 
that  Booth  was  in  the  barn.  A  guard  was 
then  left  upon  the  house,  and  the  main  por 
tion  of  the  men  thrown  around  the  barn, 
closely  investing  it,  with  orders  to  allow  no 
one  to  escape.  We  had  been  previously 
cautioned  to  see  that  our  arms  were  in  readi 
ness  for  use.  After  being  ordered  to  surren 
der,  and  told  that  the  barn  would  be  fired  in 
five  minutes  if  he  did  not  do  so,  Booth  made 
many  replies.  He  wanted  to  kpow  who  we 
took  him  for;  he  said  that  his  leg  was  broken  ; 
and  what  did  we  want  with  him  ;  and  he  was 
told  that  it  made  no  difference.  His  name 
was  not  mentioned  in  the  whole  affair.  They 
were  told  that  they  must  surrender  as  prison 
ers.  Booth  wanted  to  know  where  we  would 
take  them,  if  they  would  give  themselves  up 
as  prisoners.  He  received  no  satisfaction, 
but  was  told  that  he  must  surrender  uncondi 
tionally,  or  else  the  barn  would  be  fired.  The 
parley  lasted  much  longer  than  the  time  first 
eet;  probably  a  full  half  hour;  but  he  posi 
tively  declared  that  he  would  not  surrender. 
At  one  time  he  made  the  remark,  "  Well,  my 
brave  boys,  you  can  prepare  a  stretcher  for 
me;"  and  at  another  time,  "Well,  Captain, 
make  quick  work  of  it;  shoot  me  through 
the  heart,"  or  words  to  that  effect:  and  thereby 
I  knew  that  he  was  perfectly  desperate,  and 
did  not  expect  that  he  would  surrender. 
After  awhile  we  heard  the  whispering  of 
another  person — although  Booth  had  pre 
viously  declared  that  there  was  no  one  there 
but  himself — who  proved  to  be  the  prisoner 
Herold.  Although  we  could  not  distinguish 
the  words,  Herold  seemed  to  be  trying  to  per- 
euade  Booth  to  surrender.  After  awhile,  he 
Bang  out,  "Certainly,"  seeming  to  disdain  to 
do  so  himself.  Said  he,  "Cap,  there  is  a 
man  in  here  who  wants  to  surrender  mighty 
bad."  Then  I  suppose  words  followed  inside 
that  we  could  not  here.  Herold,  perhaps, 
thought  he  had  better  stand  by  him,  or  some 
thing  to  that  effect.  Then  Booth  said,  "  O, 
go  out  and  save  yourself,  my  boy,  if  you  can  ;  " 
and  then  he  said,  "  I  declare  before  my  Maker 
that  this  man  here  is  innocent  of  any  crime 
whatever,"  seeming  willing  to  take  all  the 
blame  on  himself  and  trying  to  clear  Herold. 


He  was  told  to  hand  out  his  arms.  Herold 
declared  that  he  had  no  arms,  and  Booth  de 
clared  that  the  arms  all  belonged  to  him,  and 
that  the  other  man  was  unarmed.  He  was 
finally  taken  out  without  his  arms. 

Immediately  after  Herold  was  taken  out, 
the  detective,  Mr.  Conger,  came  round  to  the 
side  of  the  barn  where  I  was,  and  passing  me, 
set  fire  to  the  hay  through  one  of  the  cracks 
of  the  boards  a  little  to  rny  right,  I  had 
previously  said  to  Mr.  Conger,  though,  and 
also  to  my  commanding  officer,  that  the  pos- 
sition  in  which  I  stood  lei't  me  in  front  of 
a  large  crack  —  you  might  put  your  hand 
through  it — and  I  knew  that  Booth  could 
distinguish  me  and  others  through  these 
cracks  in  the  barn,  and  could  pick  us  off  if 
he  chose  to  do  so.  In  fact,  he  made  a  re 
mark  to  that  effect  at  one  time.  Said  he, 
<l  Cap,  I  could  have  picked  oft'  three  or  four 
of  your  men  already  if  I  wished  to  do  so. 
Draw  your  men  off  fifty  yards,  and  I  will 
come  out,"  or  such  words.  He  used  such 
language  many  times.  When  the  fire  was 
lit,  which  was  almost  immediately  after, 
Herold  was  taken  out  of  the  barn.  As  tha 
flame  rose,  he  was  seen.  We  could  then  dis 
tinguish  him  about  the  middle  of  the  barn, 
turning  toward  the  fire,  either  to  put  the  fire 
out  or  else  to  shoot  the  one  who  started  it;  I 
did  not  know  which  ;  but  he  was  then  coming 
toward  me,  as  it  were,  a  little  to  my  right — a 
full  front  breast  view.  I  could  have  shot  him 
then  much  easier  than  when  I  afterward  did, 
but  as  long  as  he  was  there,  making  no  dem 
onstration  to  hurt  anyone,  1  did  not  shoot 
|  him,  but  kept  my  eye  on  him  steadily. 

Finding  the  fire  gaining  upon  him,  lie 
turned  to  the  other  side  of  the  barn,  and  got 
toward  where  the  door  was,  and  as  he  got 
there  I  saw  him  make  a  movement  toward 
the  door.  I  supposed  he  was  going  to  fight 
his  way  out.  One  of  the  men,  who  was  watch 
ing  him,  told  me  that  he  aimed  the  carbine  at 
me.  He  was  taking  aim  with  the  carbine, 
but  at  whom  I  could  not  say.  My  mind  was 
upon  him  attentively  to  see  that  he  did  no 
harm,  and  when  I  became  impressed  that  it 
was  time  I  shot  him,  I  took  steady  aim  on 
my  arm,  and  shot  him  through  a  large  crack 
in  the  barn.  When  he  was  brought  out  I 
found  that  the  wound  was  made  in  the  neck, 
a  little  back  of  the  ear,  and  came  out  a  little 
higher  up  on  the  other  side  of  the  head. 
He  lived,  I  should  think,  until  about  7  o'clock 
that  morning  ;  perhaps  two  or  three  hours 
after  he  was  shot.  1  did  not  myself  hear 
him  speak  a  word  after  he  was  shot,  except 
a  cry  or  shout  as  he  fell.  Others,  who  were 
near  him  and  watching  him  constantly,  said 
that  he  did  utter  the  words  which  were  pub 
lished. 

I  recognize  the  prisoner  Herold  among  the 
accused  as  the  man  we  took  out  of  the  barn. 
I  had  never  seen  Booth  before,  but  from  a  re 
mark  made  by  my  commanding  officer,  while 
on  the  boat  going  down  to  Belle  Plain,  that 


PURSUIT  AND  CAPTURE  OF  BOOTH  AND  HEROLD. 


95 


Booth's  leg  was  broken,  I  felt  sure  it  was 
Booth  that  I  fired  at;  for  when  the  men  in  the 
barn  were  summoned  to  surrender,  the  reply 
of  the  one  who  spoke  was  that  his  leg  was 
broken,  and  that  he  was  alone.  I  knew  also, 
from  his  desperate  language,  that  he  would 
not  be  taken  alive,  and  such  remarks,  that  it 
was  Booth,  for  I  believe  no  other  man  would 
act  in  such  a  way. 

Cross-examined  by  MR.  STONE. 

From  the  conversation  in  the  barn,  I  judge 
that  Ilerold  was  at  first  anxious  to  surrender, 
and  upon  Booth's  refusing  to  do  so,  I  rather 
thought  he  desired  to  stay  with  him  ;  but  I  can 
not  say  whether  it  was  before  or  after  that 
that  Booth  declared  before  his  Maker  that  the 
man  with  him  was  innocent  of  any  crime 
whatever. 

I  wish  to  state  here,  as  improper  motives 
have  been  imputed  to  me  for  the  act  I  did, 
that  I  twice  ottered  to  my  commanding  officer, 
Lieutenant  Doherty,  and  once  to  Mr.  Conger, 
to  go  into  the  barn  and  take  the  man,  saying 
that  I  was  not  afraid  to  go  in  and  take  him  ; 
it  was  less  dangerous  to  go  in  and  fight  him 
than  to  stand  before  a  crack  exposed  to  his 
fire,  where  I  could  not  see  him,  although  he 
could  see  me;  but  T  was  not  sent  in.  Im 
mediately  when  the  fire  was  lit,  our  positions 
were  reversed ;  I  could  see  him,  but  he  could 
not  eee  me.  It  was  not  through  fear  at  all 
that  I  shot  him,  but  because  it  was  my  im 
pression  that  it  was  time  the  man  was  shot; 
for  I  thought  he  would  do  harm  to  our  men 
in  trying  to  fight  his  way  through  that  den,  if 
I  did  not. 

CAPT.  EDWARD  DOHERTY. 
For  the  Prosecution. — May  22. 

I  had  command  of  the  detachment  of  the 
Sixteenth  New  York  Cavalry  that  captured 
Booth  and  Ilerold. 

JUDGE  ADVOCATE.  The  circumstances  of  the 
capture  having  been  fully  detailed  by  other 
witnesses,  I  will  ask  you  to  state  the  part  you 
took,  if  any,  in  the  capture  of  the  prisoner 
Herold,  and  all  he  said  on  that  occasion. 

WITNKSS.  There  had  been  considerable  con 
versation  with  reference  to  the  arms  that  Booth 
and  Ilerold  had  inside  of  Garrett's  barn. 

We  requested  Booth  and  Herold  to  come 
out  of  the  barn.  Booth  at  first  denied  that 
there  was  anybody  there  but  himself,  but 
finally  he  said,  "  Captain,  there  is  a  man  here 
who  wishes  to  surrender  awful  bad."  Mr. 
Baker,  one  of  the  detectives  who  was  there, 
said,  "Let  him  hand  out  his  arms."  I  stood 
by  the  door  and  said,  u  Hand  out  your  arms 
and  you  can  come  out."  Herold  replied,  "  1 
have  no  arms."  Mr.  Baker  said,  "  We  know 
exactly  what  you  have  got."  I  eaid,  "We 
had  better  let  him  out."  Mr.  Baker  said, 
44  No,  wait  until  Mr.  Conger  comes  here."  I 
eaid,  "No;  open  that  door,"  directing  a  man 
to  open  the  door;  "  I  will  take  that  man  out 


myself."  The  door  was  opened,  and  I  directed 
Herold  to  put  out  his  hands;  I  took  hold  of 
his  wrists  and  pulled  him  out  of  the  barn.  I 
then  put  my  revolver  under  my  arm  and  ran 
my  hands  down  him  to  see  if  he  had  any 
arms,  and  he  had  none.  I  then  said  to  him. 
"  Have  you  got  any  weapons  at  all  about 
you?"  He  said,  "Nothing  at  all  but  this," 
pulling  out  of  his  pocket  a  piece  of  a  map  of 
Virginia.  Just  at  this  time  the  shot  was 
fired  and  the  door  thrown  open,  and  I  dragged 
Herold  into  the  barn  with  me.  Booth  had 
fallen  on  his  back.  The  soldiers  and  two  de 
tectives  who  were  there  went  into  the  barn 
and  carried  out  Booth.  I  took  charge  of 
Herold  ;  and  when  I  got  him  outside  he  said, 
"  Let  me  go  away;  let  me  go  around  here;  I 
will  not  leave;  I  will  not  go  away."  Said  I, 
"  No,  sir."  Said  he  to  me,  "  Who  is  that  that 
has  been  shot  in  there  in  the  barn  ?  "  "  Why," 
said  I,  "you  know  well  who  it  is."  Said  lie, 
"No,  I  do  not;  he  told  me  his  name  was 
Boyd."  Said  I,  "  It  is  Booth,  and  you  know 
it."  Said  he,  "No,  I  did  not  know  it;  I  did 
not  know  that  it  was  Booth." 

I  then  took  him  and  tied  him  by  the  handa 
to  a  tree  opposite,  about  two  yards  from  where 
Booth's  body  was  carried,  on  the  verandah 
of  the  house,  and  kept  him  there  until  we 
were  ready  to  return.  Booth  in  the  mean  time 
died,  and  1  sewed  him  up  in  a  blanket.  Previ 
ous  to  this  I  had  sent  some  cavalry  for  the 
doctor;  and  we  got  a  negro  who  lives  about  a 
mile  from  there,  with  a  wagon,  and  put  the 
body  on  board  the  wagon,  and  started  for  Belle 
Plain. 

Herold  told  me  afterward  that  he  met 
this  man  by  accident  about  seven  miles  from 
Washington,  between  11  and  12  o'clock  on  the 
night  of  the  murder.  He  said  that  after  they 
met  they  went  to  Mathias  Point,  and  crossed 
the  Potomac  there.  He  did  not  mention  the 
houses  at  which  they  stopped.  Dr.  Stewart's 
house  was  mentioned  by  some  one  as  a  place 
at  which  they  had  stopped,  but  whether  it  was 
by  Herold  or  not  I  do  not  remember. 

Cross-examined  by  MR.  STONE. 

Booth  said,  while  in  the  barn,  that  he  was 
the  only  guilty  man,  and  that  this  man  Ilerold 
was  innocent,  or  words  to  that  effect.  Herold 
made  no  resistance  after  he  was  captured. 

SURGEON-GENERAL  J.  K.  BARNES. 

For  the  Prosecution. — May  20. 

I  examined  the  body  of  J.  Wilkes  Booth 
after  his  death,  when  he  was  brought  to  this 
city.  He  had  a  scar  upon  the  large  muscle 
of  the  left  side  of  his  neck,  three  inches  belou 
the  ear,  occasioned  by  an  operation  performed 
by  Dr.  May  of  this  city  for  the  removal  of  a 
tumor  some  months  previous  to  Booth's  death. 
It  looked  like  the  scar  of  a  burn  instead  of 
an  incision,  which  Dr.  May  explained  by  the 
fact  that  the  wound  was  torn  open  on  the  stage 
when  nearly  well. 


96 


THE    CONSPIRACY   TKIAL. 


DEFENSE  OF  DAVID  E.  HEROLD. 


CAPTAIN  ELI  D.  EDMONDS,  U.  S.  N. — May  27. 
By  MR.  STONE. 

I  know  David  E.  Herold,  one  of  the  pris 
oners;  I  saw  him  at  his  home  in  Washing 
ton  on  the  20th  and  21st  of  February.  I  am 
positive  in  my  recollection  of  it. 

FEANCIS  S.  WALSH. — May  30. 

I  reside  in  Washington,  on  Eighth  Street, 
east.  I  have  known  the  prisoner,  David  E. 
Herold,  since  he  was  a  boy ;  have  known  him 
intimately  since  October,  1863.  I  am  a 
druggist,  and  employed  Herold  as  a  clerk 
eleven  months.  During  this  time,  he  lived 
in  my  house,  and  I  knew  of  nothing  ob 
jectionable  in  his  character.  He  was  light 
and  trifling  in  a  great  many  things,  more 
like  a  boy  than  a  man,  but  1  never  saw  any 
thing  to  find  fault  with  in  his  moral  char 
acter.  He  was  temperate  in  his  habits,  and 
regular  in  his  hours.  He  was  easily  per 
suaded  and  led,  more  than  is  usually  the 
case  with  young  men  of  his  age  ;  I  considered 
him  boyish  in  every  respect.  I  should  sup 
pose  him  to  be  about  twenty-two  years  of  age. 

JAMES  NOKES. — May  30. 
By  MR.  STONE. 

I  have  lived  in  Washington  since  1827; 
reside  in  that  part  called  the  Navy  Yard.  I 
have  known  the  prisoner,  Herold,  from  his 
birth — about  twenty-three  years,  I  believe. 
With  his  family  I  have  been  intimate  for 
eighteen  or  nineteen  years;  there  are  seven 
children  living,  I  believe,  and  he  is  the  only 
boy.  I  have  always  looked  upon  him  as  a 
light  and  trifling  boy;  that  very  little  relia 
bility  was  to  be  placed  in  him ;  and  I  consider 
him  more  easily  influenced  by  those  around 
him  than  the  generality  of  young  men  of  his 
age.  I  have  never  heard  him  enter  into  any 
argument  on  any  subject  in  the  world,  like 
other  young  men ;  all  his  conversation  was 
light  and  trifling. 

WILLIAM  H.  KEILOTZ. — May  30. 
By  MR.  STONE. 

I  have  lived  next  door  to  Mr.  Herold  for 
thirteen  years,  and  know  the  prisoner,  David 


E.  Herold,  well.  During  last  February,  I 
was  home,  my  wife  being  sick,  and  I  saw  the 
prisoner  a  good  deal  then  ;  I  may  have  seen 
him  every  day,  except,  perhaps,  four  or  five. 
I  consider  his  character  very  boyish.  I  see 
him  often  with  boys;  he  is  very  fond  of 
their  company,  and  never  associates  with 
men.  He  is  fond  of  sport,  gunning,  dogs,  etc. 

EMMA  HEROLD. — May  30. 
By  MR.  STONE. 

I  am  sister  of  David  E.  Herold.  I  know 
that  my  brother  was  home  on  the  15th  of 
February  last;  I  remember  it  from  my  hav 
ing  sent  him  a  valentine,  which  he  received 
on  the  15th  ;  and  my  sisters  talked  with  him 
about  it.  I  also  knew  that  he  was  at  home 
on  the  19th  of  February;  it  was  the  Sunday 
after  Valentine's  day.  I  remember  taking  a 
pitcher  of  water  up  stairs,  and  my  brother 
met  me  in  the  passage  and  wanted  it;  but 
I  would  not  give  it  to  him;  he  then  tried  to 
take  it  from  me,  and  we  both  got  wet  from 
the  water  being  spilled.  He  was  also  at 
home  between  those  days. 

MRS.  MARY  JENKINS. — May  30. 
By  MR.  STONE. 

I  know  the  prisoner,  David  E.  Herold. 
He  was  at  my  house  on  the  18th  of  February 
last,  and  received  my  rent.  I  have  his  re 
ceipt  of  that  date  to  show  it. 

MRS.  ELIZABETH  POTTS. — May  30. 
By  MR.  STONE. 

I  know  the  accused,  David  E.  Herold.  I 
can  not  say  whether  he  was  in  Washington 
on  the  20th  of  last  February,  but  I  know 
he  was  there  on  the  19th,  for  he  came  to 
my  house  for  his  money.  As  I  was  not 
prepared,  I  told  him  I  would  send  it  to  him 
the  next  day,  which  I  did,  and  I  have  his 
receipt  for  the  money,  dated  the  20th. 

DR.  CHARLES  W.  DAVIS. — May  31. 
By  MR.  STONE. 

I  reside  in  Washington  City,  near  the 
Navy  Yard.  I  was  formerly  in  the  Quarter 
master's  Department  on  General  Wool's 


TESTIMONY    CONCERNING   EDWARD    SPANGLER. 


97 


staff.  I  have  known  the  prisoner,  Herold, 
from  early  boyhood,  having  lived  a  great  part 
of  the  time  next  door.  At  present  I  live 
four  or  five  squares  off,  but  I  see  him  fre 
quently.  I  do  not  know  that  I  can  describe 
his  character  in  better  terms  than  to  say  that 
he  is  a  boy;  he  is  trifling,  and  always  has 
been.  There  is  very  little  of  the  man  about 
him.  From  what  I  know  of  him,  I  should 
say  he  is  very  easily  persuaded  and  led ;  I 
should  think  that  nature  had  not  endowed 
him  with  as  much  intellect  as  the  generality 
of  people  possess.  I  should  think  his  age  is 
about  twenty-two  or  twenty-three,  but  I  con 
sider  him  far  more  of  a  boy  than  a  man. 


DR.  SAMUEL  A.  H.  McKiM.— May  31. 
By  MR.  STONE. 

I  reside  in  Washington  City,  the  eastern 
part.  I  am  acquainted  with  the  prisoner, 
Herold;  can  scarcely  say  when  I  did  not 
know  him;  I  have  known  him  very  well  for 
the  last  six  years.  I  consider  him  a  very 
light,  trivial,  unreliable  boy;  so  much  so 
that  I  would  never  let  him  put  up  a  prescrip 
tion  of  mine  if  I  could  prevent  it,  feeling  con 
fident  he  would  tamper  with  it  if  he  thought 
he  could  play  a  joke  on  anybody.  In 
mind,  I  consider  him  about  eleven  years  of 
age. 


TESTIMONY  CONCERNING  EDWARD  SPANGLER. 


JACOB  RITTERSPAUGH. 
For  the  Prosecution. — May  19. 

I  know  the  prisoner,  Edward  Spangler. 
He  boarded  where  I  did,  at  Mrs.  Scott's,  on 
the  corner  of  Seventh  and  G  Streets.  He  had 
no  room  in  the  house;  he  took  his  meals 
there,  and  slept  at  the  theater.  He  used  to 
keep  his  valise  at  the  house,  and  when  the 
detectives  came  and  asked  if  Spangler  had 
any  thing  there,  I  gave  it  to  them.  He  had 
no  clothes  there,  nothing  but  that  valise;  I 
do  not  know  what  it  contained.  I  am  com 
monly  called  Jake  about  the  theater. 

Recalled  for  the  Prosecution. — May  30. 

I  was  a  carpenter  in  Ford's  Theater  down 
to  the  14th  of  April  last,  and  was  there  on 
that  night  when  the  President  was  shot  He 
occupied  the  upper  box  on  the  left-hand  side 
of  the  stage,  the  right  as  you  come  in  from 
the  front.  My  business  was  to  shift  wings 
on  the  stage  and  pull  them  off,  and  fetch 
things  out  of  the  cellar  when  needed. 

I  was  standing  on  the  stage  behind  the  scenes 
on  the  night  of  the  14th,  when  some  one 
called  out  that  the  President  was  shot,  and 
directly  I  saw  a  man  that  had  no  hat  on  run 
ning  toward  the  back  door. 

He  had  a  knife  in  his  hand,  and  I  ran  to 
stop  him,  and  ran  through  the  last  entrance, 
and  as -I  came  up  to  him  he  tore  the  door 
open.  I  made  for  him,  and  he  struck  at  me 
with  the  knife,  and  I  jumped  back  then.  He 
then  ran  out  and  slammed  the  door  shut.  I 
then  went  to  get  the  door  open  quick,  and  1 
thought  it  was  a  kind  of  fast;  I  could  not 
get  it  open.  In  a  moment  afterward  I  opened 
the  door,  and  the  man  had  just  got  on  his 
horse  and  was  running  down  the  alley;  and 
then  I  came  in.  I  came  back  on  the  stage 
where  I  had  left  Edward  Spangler,  and  he  hit 

7 


me  on  the  face  with  the  back  of  his  hand, 
and  he  said,  "Do  n't  say  which  way  he  went." 
I  asked  him  what  he  meant  by  slapping  me 
in  the  mouth,  and  he  said,  "  For  God's  sake, 
shut  up; "  and  that  was  the  last  he  said. 

The  man  of  whom  I  speak  is  Edward 
Spangler,  the  prisoner  at  the  bar.  I  did  not 
see  any  one  else  go  out  before  the  man  with 
the  knife.  A  tall,  stout  man  went  out  after 
me. 

Cross-examined  by  MR.  EWINO. 

When  I  heard  the  pistol  fired  I  was  stand 
ing  in  the  center  of  the  stage,  listening  to  the 
play,  and  Spangler  was  at  the  same  place, 
just  about  ready  to  shove  off  the  scenes;  I 
stood  nearest  the  door.  I  am  certain  we  both 
stood  there  when  the  pistol  was  fired.  I  did 
not  at  first  know  what  had  happened.  Some 
one  called  out  "  Stop  that  man; "  and  then  I 
heard  some  one  say  that  the  President  was 
shot,  and  not  till  then  did  I  know  what  had 
occurred.  When  I  came  back,  Spangler  was 
at  the  same  place  where  I  had  left  him. 
There  was  a  crowd  in  there  by  that  time,  both 
actors  and  strangers.  When  Spangler  slapped 
me  there  were  some  of  the  actors  near  who 
had  taken  part  in  the  play;  one  they  called 
Jenny — I  do  not  know  what  part  she  took — 
was  standing  perhaps  three  or  four  feet  from 
me;  I  do  not  know  whether  she  heard  what 
he  said;  he  did  not  say  it  so  very  loud.  He 
spoke  in  his  usual  tone,  but  he  looked  as  if 
he  was  scared,  and  a  kind  of  crying.  I 
heard  the  people  halloo,  "  Burn  the  theater!  " 
"  Hang  him  and  shoot  him  ! "  I  did  not, 
that  I  know  of,  tell  a  number  of  persons  what 
Spangler  said  when  he  slapped  me.  I  did  not 
tell  either  of  the  Messrs.  Ford ;  I  told  it  to 
nobody  but  Gifford,  the  boss.  At  Carroll 
Prison,  the  same  week  that  I  was  released, 
I  told  him  that  Spangler  said  I  should  not 


98 


THE    CONSPIRACY   TRIAL. 


say  which  way  the  man  went.  I  told  a  de 
tective  that  Spangler  hit  me  in  the  mouth 
with  his  open  hand.  I  do  not  know  his  name; 
he  was  one  of  Colonel  Baker's  men ;  had  black 
whiskers  and  moustache,  and  weighed  about 
one  hundred  and  forty  pounds,  I  should  think. 
He  came  up  to  the  house  where  I  board  in 
the  afternoon  of  the  day  on  which  I  was  re 
leased,  and  I  told  him  then.  I  have  no  recol 
lection  of  telling  any  one  else,  though  I  might 
have  said  something  at  the  table,  and  the  rest 
might  have  heard. 

I  saw  Booth  open  the  back  door  of  the 
theater  and  shut  it,  but  I  did  not  know  who 
he  was  then;  I  did  not  see  his  face  right.  I 
was  the  first  person  that  got  to  the  door  after 
he  left ;  I  opened  the  door,  but  did  not  shut 
it.  The  big  man  that  ran  out  after  me  might 
have  been  five  or  six  yards  from  me  when  I 
heard  him,  or  it  might  have  been  somebody 
else,  call  out,  "Which  way?"  I  cried  out, 
"This  way,"  and  then  ran  out,  leaving  the 
door  open.  By  that  time  the  man  had  got 
on  his  horse  and  gone  off  down  the  alley.  I 
saw  the  big  man  outside,  and  have  not  seen 
him  since.  I  did  not  take  particular  notice 
of  him  ;  but  he  was  a  tolerably  tall  man.  It 
might  have  been  two  or  three  minutes  after  I 
went  out  till  I  came  back  to  where  Spangler 
was  standing,  and  found  him  kind  of  scared, 
and  as  if  he  had  been  crying.  I  did  not  say 
any  thing  to  him  before  he  said  that  to  me. 
It  was  Spangler's  place,  with  another  man,  to 
shove  the  scenes  on ;  he  was  where  he  ought  to 
be  to  do  the  work  he  had  to  do.  I  did  not 
hear  any  one  call  Booth's  name.  It  was  not 
till  the  people  were  all  out,  and  I  came  out 
side,  that  I  heard  some  say  it  was  Booth,  and 
some  say  it  was  not,  Spangler  and  I  boarded 
together;  we  went  home  to  supper  together, 
on  the  evening  of  the  assassination,  at  6 
o'clock,  and  returned  at  7. 

WILLIAM  EATON. 
Recalled  for  the  Prosecution. — May  19. 

I  arrested  the  prisoner,  Edward  Spangier, 
in  a  house  on  the  South-east  corner,  I  think, 
of  Seventh  andH;  I  believe  it  was  his  board 


ing-house.  It  was  the  next  week  after  the 
assassination.  I  did  not  search  him;  rny 
orders  were  to  arrest  him. 

CHARLES  H.  ROSCH. 
For  the  Prosecution. — May  19. 

After  the  arrest  of  the  prisoner,  Edward 
Spangler,  1  went,  in  company  with  two  of 
the  Provost  Marshal's  detectives,  to  the 
house  on  the  north-east  corner  of  Seventh 
and  H  Streets,  where  he  took  his  meals. 
When  we  inquired  for  his  trunk,  we  were 
told  that  he  kept  it  at  the  theater;  but  the 
man  at  the  house  handed  us  a  carpet-bag, 
in  which  we  found  a  piece  of  rope  measur 
ing  eighty-one  feet,  out  of  which  the  twist 
was  very  carefully  taken.  The  bag  was 
locked,  but  we  found  a  key  that  unlocked  it. 
It  contained  nothing  but  the  rope,  some 
blank  paper,  and  a  dirty  shirt-collar.  I  was 
not  present  when  Spangler  was  arrested.  I 
went  to  his  house  between  9  and  10  o'clock 
on  the  night  of  Monday,  April  17. 

Cross-examined  by  MR.  EWING. 

It  was  a  man  called  Jake,  apparently  a 
German,  that  told  me  it  was  Spangler's  bag, 
and  that  it  was  all  he  had  at  the  house.  He 
said  he  worked  at  the  theater  with  Spangler. 
There  were  two  other  persons  there,  board 
ers  I  presume.  We  got  the  rope  from  a 
bed-room  on  the  second  floor  that  faced 
toward  the  south;  the  bag  was  right  near 
where  Jake  had  his  trunk.  I  am  satisfied 
that  the  coil  of  rope  I  see  here  now  is  the 
same  that  I  took  from  Spangler's  carpet-bag. 

See  testimony  of 

Jos.  Burroughs  alias  "Peanuts,"  page  74 

Mary  Ann  Turner "  75 

Mary  Jane  Anderson "  75 

James  L.  Maddox "  75 

Joseph  B.  Stewart "  79 

Joe  Simms "  80 

John  Miles "  81 

John  E.  Buckingham "  73 


DEFENSE  OF  EDWARD  SPAXGLER. 


DEFENSE  OF  EDWARD  SPANGLER. 


C.  D.  HESS. 

For  the  Defense.— May  31. 
By  MR.  EWING. 

i  am  manager  of  Grover's  Theater,  and  I 
have  been  in  the  habit  of  seeing  John  Wilkes 
Booth  very  frequently.  On  the  day  before 
the  assassination  he  came  into  the  office 
during  the  afternoon,  interrupting  me  and 
the  prompter  of  the  theater  in  reading  a 
manuscript.  He  seated  himself  in  a  chair, 
and  entered  into  a  conversation  on  the  gen 
eral  illumination  of  the  city  that  night.  He 
asked  me  if  I  intended  to  illuminate.  I  said 
yes,  I  should,  to  a  certain  extent;  but  that 
the  next  night  would  be  my  great  night  of 
the  illumination,  that  being  the  celebration 
of  the  fall  of  Sumter.  He  then  asked,  "  Do 
you  intend  to"  or  "  Are  you  going  to  invite 
the  President?"  My  reply,  I  think,  was, 
"  Yes ;  that  reminds  me  I  must  send  that 
invitation."  I  had  it  in  my  mind  for  several 
days  to  invite  the  Presidential  party  that 
night,  the  14th.  I  sent  my  invitation  to 
Mrs.  Lincoln.  My  notes  were  usually  ad 
dressed  to  her,  as  the  best  means  of  accom 
plishing  the  object. 

Booth's  manner,  and  his  entering  in  the 
way  he  did,  struck  me  as  rather  peculiar. 
He  must  have  observed  that  we  were  busy, 
and  it  was  not  usual  for  him  to  come  into 
the  office  and  take  a  seat,  unless  he  was 
invited.  He  did  upon  this  occasion,  and 
made  such  a  point  of  it  that  we  were  both 
considerably  surprised.  He  pushed  the  mat 
ter  so  far  that  I  got  up  and  put  the  manu 
script  away,  and  entered  into  conversation 
with  him. 

It  is  customary  in  theaters  to  keep  the 
passage-way  between  the  scenes  and  the 
green-room  and  the  dressing-rooms  clear,  but 
much  depends  upon  the  space  there  is  for 
storing  scenes  and  furniture. 

[The  counsel  was  eliciting  from  the  witness  the  position 
of  the  box  usually  occupied  by  the  President  on  visiting 
Grover's  Theater,  and  the  nature  of  the  leap  that  an  assas 
sin  would  have  to  make  in  endeavoring  to  escape  from  the 
box,  when  objection  was  made  to  the  testimony  as  irrele 
vant.] 

Mr.  EWING.  I  wish  merely  to  show  that, 
from  the  construction  of  Ford's  Theater,  it 
would  be  easier  for  the  assassin  to  effect  higi 
escape  from  Ford's  Theater  than  it  would  be 
from  Grover's.  The  purpose  is  plainly  to 
show  that  Ford's  Theater  was  selected  by 
Booth,  and  why  Ford's  Theater  is  spoken  of 
by  him  as  the  one  where  he  intended  to 
capture  or  assassinate  the  President,  and  to 
relieve  the  employees  of  Ford's  Theater,  Mr. 
Spangler  among  them,  from  the  imputation 
which  naturally  arises  from  Booth's  selecting 


that  theater  as  the  one  in  which  to  commit 
the  crime. 

The  Commission  sustained  the  objection. 

H.  CLAY  FORD. 

For  the  Defense.— May  31. 

By  MR.  EWING. 

On  the  14th  of  April  last  I  was  treasurer 
of  Ford's  Theater.  I  returned  to  the  theater 
from  my  breakfast  about  half-past  11  o'clock 
that  day,  when  my  brother,  James  R.  Ford, 
told  me  that  the  President  had  engaged  a 
box  for  that  night.  John  Wilkes  Booth  was 
at  the  theater  about  half  an  hour  afterward. 
I  do  not  know  that  the  fact  of  the  Presi 
dent's  going  to  the  theater  that  night  was 
communicated  to  Booth,  but  I  think  it  is 
very  likely  he  found  it  out  while  there.  I 
saw  him  going  down  the  street  while  I  was 
standing  in  the  door  of  the  theater;  as  he 
came  up  he  commenced  talking  to  the  parties 
standing  around.  Mr.  Raybold  then  went 
into  the  theater  and  brought  him  out  a  let 
ter  that  was  there  for  him.  He  sat  down  on 
the  steps  and  commenced  reading  it.  This 
was  about  12  o'clock.  He  staid  there  per 
haps  half  an  hour.  I  went  into  the  office, 
and  when  I  came  out  again  he  was  gone. 

I  told  Mr.  Raybold  about  fixing  up  and 
decorating  the  box  for  the  President  that 
night,  but  he  had  the  neuralgia  in  his  face, 
and  I  fixed  up  the  box  in  his  place.  I  found 
two  flags  in  the  box  already  there,  which  I 
got  Mr.  Raybold  to  help  me  put  up.  An 
other  flag  I  got  from  the  Treasury  Depart 
ment.  It  was  the  Treasury  regimental  flag. 
I  put  this  blue  regimental  flag  in  the  center, 
and  the  two  American  flags  above.  There 
was  nothing  unusual  in  the  decorations  of 
the  box,  except  the  picture  of  Washington 
placed  on  the  pillar  in  the  middle  of  the 
box.  This  had  never  been  used  before.  We 
usually  used  small  flags  to  decorate  the  box; 
but  as  General  Grant  was  expected  to  come 
with  the  President,  we  borrowed  this  flag 
from  the  Treasury  regiment  to  decorate 
with. 

The  furniture  placed  in  the  box  consisted 
of  one  chair  brought  from  the  stage  and  a 
sofa,  a  few  chairs  out  of  the  reception-room, 
and  a  rocking-chair,  which  belonged  to  the 
same  set,  I  had  brought  from  my  bed-room. 
This  chair  had  been  in  the  reception-room, 
but  the  ushers  sitting  in  it  had  greased  it 
with  their  hair,  and  I  had  it  removed  to  my 
room,  it  being  a  very  nice  chair.  The  only 
reason  for  putting  that  chair  in  the  box  was 
that  it  belonged  to  the  set,  and  I  sent  for  it 
to  make  the  box  as  neat  as  possible 


100 


THE    CONSPIRACY   TRIAL. 


T  received  no  suggestions  from  any  one  as 
to  the  decoration  of  the  box,  excepting  from 
Mr.  Ray  bold  and  the  gentleman  who  brought 
the  flag  from  the  Treasury  Department. 

All  that  Spangler  had  to  do  with  the  box 
was  to  take  the  partition  out.  There  are  two 
boxes  divided  by  a  partition,  which,  when 
the  President  attended  the  theater,  was  al 
ways  removed  to  make  the  box  into  one. 
Spangler  and  the  other  carpenter,  Jake,  re 
moved  it.  The  President  had  been  to  the 
theater.  I  suppose,  about  six  times  during  the 
winter  and  spring;  three  or  four  times  during 
Mr.  Forrest's  engagements,  and  twice  during 
Mr.  Clark's  engagement.  These  are  the 
only  times  I  remember. 

I  did  not  direct  Spangler  with  respect  to 
the  removal  of  the  partition ;  I  believe  Mr. 
Ray  bold  sent  for  him.  While  we  were  in 
the  box  Spangler  was  working  on  the  stage; 
I  think  he  had  a  pair  of  flats  down  on  the 
stage,  fixing  them  in  some  way.  I  called  for 
a  hammer  and  nails;  he  threw  up  two  or 
three  nails,  and  handed  me  the  hammer  up 
from  the  stage. 

Spangler,  of  course,  knew  that  the  Presi 
dent  was  coming  to  the  theater  that  evening, 
as  he  assisted  in  taking  out  the  partition. 

In  decorating  the  box  I  used  my  penknife 
to  cut  the  strings  to  tie  up  the  flags,  and  left 
it  there  in  the  box. 

Three  or  four  times  during  the  season 
Booth  had  erfgaged  box  No.  7,  that  is  part 
of  the  President's  box,  being  the  one  nearest 
the  audience.  He  engaged  no  other  box. 

During  the  play  that  evening,  the  "Ameri 
can  Cousin,"  I  was  in  the  ticket-office  of  the 
theater.  I  may  have  been  out  on  the  pave 
ment  in  front  two  or  three  times,  but  I  do 
not  remember.  I  did  not  see  Spangler  there. 
I  never  saw  Spangler  wear  a  moustache. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

None  of  the  other  boxes  were  occupied  on 
the  night  of  the  President's  assassination, 
and  I  do  not  remember  any  box  being  taken 
on  that  night.  I  certainly  did  not  know 
that  the  boxes  were  applied  for,  for  that  even 
ing,  and  that  the  applicants  were  refused  and 
told  that  the  boxes  were  already  taken.  The 
applicants  did  not  apply  to  me.  Booth  did 
not  apply  to  me,  or  to  any  one,  for  those 
boxes,  to  my  knowledge,  nor  did  any  one  else 
for  him.  There  were  four  of  us  in  the  office 
who  sold  tickets.  There  were  not,  to  my 
knowledge,  any  applications  for  any  box  ex 
cept  the  President's.  There  may  have  been 
applications  without  my  knowledge. 

I  know  nothing  of  the  mortise  in  the  wall 
behind  the  door  of  the  President's  box.  I 
heard  of  it  afterward,  but  have  never  seen  it, 
nor  did  I  see  the  bar  said  to  have  been  used 
to  fasten  the  door,  nor  did  I  see  the  hole 
bored  through  the  first  door  of  the  Presi 
dent's  box,  though  I  have  since  heard  there 
was  one.  I  have  not  been  in  the  box  since. 


The  screws  of  the  keepers  of  the  lock  to 
the  President's  box,  I  understand,  were  burst 
some  time  ago.  They  were  not,  to  my 
knowledge,  drawn  that  day,  and  left  so  that 
the  lock  would  not  hold  the  door  on  its  be 
ing  slightly  pressed.  It  was  not  done  in  my 
presence,  and  if  it  was  done  at  all,  it  was 
without  my  knowledge. 

I  do  not  remember  any  conversation  with 
Mr.  Ferguson  before  the  day  of  the  assassin 
ation  about  decorating  the  theater  in  celebra 
tion  of  some  victory. 

By  MR.  AIKEN. 

The  letter  that  Booth  received  on  the  day 
of  the  assassination,  and  read  on  the  step's 
of  the  theater,  was  a  long  letter,  oi'^  either 
four  or  eight  pages  of  letter-paper — whether 
one  or  two  sheets  I  do  not  know,  but  it  was 
all  covered  with  writing.  He  sat  on  the 
steps  while  reading  his  letter,  every  now  and 
then  looking  up  and  laughing.  It  was  while 
Booth  was  there  that  I  suppose  he  learned 
of  the  President's  visit  to  the  theater  that 
evening.  There  were  several  around  Booth, 
talking  to  him.  Mr.  Giftbrd  was  there;  Mr. 
Evans,  an  actor,  and  Mr.  Grillet,  I  remem 
ber,  were  there  at  the  time. 

The  President's  visit  to  the  theater  that 
evening  could  not  have  been  known  until  12 
o'clock,  unless  it  was  made  known  by  some 
one  from  the  Executive  Mansion.  It  waa 
published  in  the  Evening  Star,  but  not  in 
the  morning  papers. 

I  am  not  acquainted  with  John  H.  Surratt 

[Photograph  of  John  H.  Surratt  exhibited  to  the  wit 
ness.] 

I  never  saw  that  person  that  I  know  of. 
By  MR.  EWING. 

I  have  never,  to  my  knowledge,  seen  the 
prisoner,  Herold. 

The  mortise  in  the  passage-way  was  not 
noticed  by  me;  the  passage  was  dark,  and 
when  the  door  was  thrown  back  against  the 
wall,  as  it  was  that  day,  I  should  not  be 
likely  to  notice  it  had  it  been  there  at  that 
time.  Had  the  small  hole  been  bored  in 
the  door,  or  had  the  screws  been  loosened,  it 
is  not  likely  I  should  have  noticed  them. 

By  the  COURT. 

I  might  have  stated  in  the  saloon  on  Tenth 
Street  that  the  President  was  to  be  at  the 
theater  that  evening,  and  also  that  General 
Grant  was  to  be  there. 

JAMES  R.  FORD. 

For  the  Defense. — May  30. 

By  MR.  EWING. 

At  the  time  of  the  assassination,  I  was 
business  manager  of  Ford's  Theater.  I  was 
first  apprised  of  the  President's  intended  visit 
to  the  theater  on  Friday  morning,  at  half- 
past  10  o'clock.  A  young  man,  a  messenger 
from  the  White  House,  came  and  engaged 


DEFENSE  OF  EDWARD  SPANGLER. 


101 


the  box.     The  President  had  been  previously !  evidence,  or  any  evidence  at  all,  to  introduce 
invited  to  the  theater  that  night,  and  I  had   a  conversation   between  Booth  and  this  wit- 


Wilkes   Booth   about   half-past  (and  the  Court  have  nothing  in  the  world  to 
i  after  I    received  this  in  for  ma-  do  with  it.     It  would   be  impossible  to  ask 


no  knowledge  of  his  intention  to  visit  the 
theater  until  the  reception  of  that  message. 
1  saw  John 
12,  two  hours 
tion.  I  saw  him  as  I  was  coming  from  the 
Treasury  Building,  on  the  corner  of  Tenth 
and  E  Streets.  I  was  going  up  E  Street, 
toward  Eleventh  Street;  he  was  coming 
from  the  direction  of  the  theater. 

Q.  State  whether,  upon  any  occasion,  you 
have  had  any  conversation  with  Booth  as  to 
the  purchase  of  lands,  and,  if  so,  where? 

Assistant  Judge  Advocate  BINGHAM.  I  ob 
ject  to  the  question. 

Mr.  EWING.     Testimony  has  already  been 


ness  at  another   time   and   place.     It   is  no 
evidence  at  all,  it  is  not  colorable  evidence, 


admitted  on  that  point. 
Assistant    Judge    Advocate    BINGHAM. 


know,  but  it  is  unimportant  as  to  this  man; 
there  is  no  question  about   this  man  in  the 


case. 

Mr.  EWING 


It  is  very  important  as  to  one 


of  the  prisoners. 

Assistant  Judge  Advocate  BINGHAM. 


This 


witness  can  not  be  evidence  for  any  human 
being  on  that  subject,  no  matter  what  Booth 
eaid  to  him  about  it.  I  object  to  it  on  the 
ground  that  it  is  entirely  incompetent,  and 
has  nothing  in  the  world  to  do  with  the  case. 
If  this  witness  had  been  involved  in  it,  I  ad 
mit  it  might  be  asked,  with  a  view  to  excul 
pate  him  from  any  censure  before  the  public. 

Mr.  EWING.  The  Court  will  recollect  that 
in  Mr.  Weichman's  testimony  there  was  evi 
dence  introduced  by  the  prosecution  of  an 
alleged  interview  between  Dr.  Mudd  and 
Booth  at  the  National  Hotel,  in  the  middle 
of  January,  which  was  introduced  as  a  circum 
stance  showing  his  connection  with  the  con 
spiracy,  which  Booth  is  supposed  to  have 
then  had  on  foot.  The  accused,  Dr.  Mudd, 
is  represented  to  have  stated  that  the  con 
versation  related  to  the  purchase  of  his  lands 
in  Maryland.  I  wish  to  show  by  this  wit 
ness  that  Booth  spoke  to  him  frequently, 
through  the  course  of  the  winter,  of  his 
speculations,  of  his  former  speculations  in 
oil  lands,  which  are  shown  to  have  been 
actual  speculations  of  the  year  before,  and 
of  his  contemplating  the  investment  of  money 
in  cheap  lands  in  Lower  Maryland.  The 
effect  of  the  testimony  is  to  show  that  the 
statement,  which  has  been  introduced  against 
the  accused,  Dr.  Mudd,  if  it  was  made,  was 
a^ona  fide,  statement,  and  related  to  an  actual 
pending  offer,  or  talk  about  the  sale  of  his 
farm  to  Booth. 

Assistant  Judge  Advocate  BINGHAM.  The 
only  way,  if  the  Court  please,  in  which  they 
can  do  any  thing  in  regard  to  this  matter  of 
the  declaration  of  Mudd,  if  it  was  made, 
(and,  if  it  was  not  made,  of  course  it  does 
not  concern  anybody,)  is  simply  to  show  by 
legitimate  evidence  that  there  was  such  a  ne 
gotiation  going  on  between  himself  and  Booth. 


impossibh 

the  witness  any  questions  that  would  be  more 
irrelevant  or  incompetent  than  the  question 
that  is  now  asked  him. 

Mr.  EWING.  I  will  state  to  the  Court 
further  that  it  has  already  received  testimony, 
as  explanatory  of  the  presence  of  Booth  in 
Charles  County,  of  his  avowed  object  in 
going  there — testimony  to  which  the  Judge 
Advocate  made  no  objection,  and  which  he 
must  have  then  regarded  as  relevant.  This 
testimony  is  clearly  to  that  point  of  explana 
tion  of  Booth's  visit  in  Lower  Maryland,  as 
well  as  an  explanation  of  the  alleged  conver 
sation  with  Mudd  in  January. 

Assistant  Judge  Advocate  BINGHAM.  The 
difference  is  this:  the  defense  attempted  to 
prove  negotiations  in  Charles  County,  and 
we  thought  we  would  not  object  to  that;  but 
this  is  another  thing  altogether.  It  is  an 
attempt  to  prove  a  talk,  irrespective  of  time 
or  place,  or  any  thing  else. 

The  Commission  sustained  the  objection. 

By  MR.  EWING. 

Q.  Do  you  know  any  thing  of  the  visit 
made  by  Booth  into  Charles  County  last 
fall? 

A.  He  told  me 

Assistant  Judge  Advocate  BINGHAM  objected 
to  the  witness  giving  the  declarations  of 
Booth. 

The  WITNESS.  I  have  never  known  Booth 
to  go  there. 

Q.  Have  you  ever  heard  Booth  say  what 
the  purpose  of  any  visit  which  he  may 
have  made  last  fall  to  Charles  County 
was  ? 

Assistant  Judge  Advocate  BINGHAM  renewed 
his  objection. 

The  Commission  sustained  the  objection. 

By  MR.  AIKEN. 

The  notice  in  the  Evening  Star  that  an 
nounced  the  President's  intended  visit  to  the 
theater,  also  said  that  General  Grant  would 
be  there. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT 

I  wrote  the  notice  for  the  Star  in  the 
ticket-office  of  the  theater  about  half-past 
11  or  12  o'clock,  and  sent  it  to  the  office 
immediately ;  I  at  the  same  time  carried  one 
myself  to  the  National  Republican.  The 
notice  appeared  in  the  Star  about  2  o'clock. 
Before  writing  the  notice  I  asked  Mr.  Phil 
lips,  an  actor  in  our  establishment,  who  was 
on  the  stage,  to  do  it;  he  said  he  would  after 
had  finished  writing  the  regular  adver 
tisements.  I  also  spoke  to  my  younger 
arother  about  the  propriety  of  writing  it.  I 


The  point  I  make  is,  that  it  is  not  legitimate '  had  not  seen  Booth  previous  to  writing  the 


102 


THE    CONSPIRACY    TRIAL. 


notice,  nor  do  I  remember  speaking  to  any 
one  else  about  it. 

By  MR.  AIKEN. 

I  had  sent  the  notice  to  the  Star  office 
before  seeing  Booth. 

[Exhibiting  the  photograph  of  John  H.  Surratt.] 

I  do  not  know  Surratt.  I  never  remember 
seeing  him. 

John  McCullough,  the  actor,  left  this  city 
the  fourtli  week  in  January.  He  returned 
with  Mr.  Forrest  at  his  last  engagement.  I 
do  not  know  exactly  when,  but  about  the 
1st  of  April. 

JOHN  T.  FORD. 

For  the  Defense. — May  31. 

1  reside  in  Baltimore,  and  am  proprietor 
of  Ford's  Theater  in  the  city  of  Washing 
ton.  The  prisoner,  Edward  "Spangler,  has 
been  in  my  employ  three  or  four  years  at 
intervals,  and  over  two  years  continuously. 

Spangler  was  employed  as  a  stage  hand, 
frequently  misrepresented  as  the  stage-car 
penter  of  the  theater.  He  was  a  laborer  to 
assist  in  shoving  the  scenery  in  its  place, 
as  the  necessity  of  the  play  required.  These 
were  his  duties  at  night,  and  during  the  day 
to  assist  in  doing  the  rough  carpenter  work 
incidental  to  plays  to  be  produced. 

Q.  State  whether  or  not  his  duties  were 
such  as  to  require  his  presence  upon  the 
stage  during  the  whole  of  a  play. 

A.  Strictly  so';  his  absence  for  a  moment 
might  imperil  the  success  of  a  play,  and 
cause  dissatisfaction  to  the  audience.  It  is 
very  important  to  the  effect  of  a  play  that 
the  scenery  should  be  well  attended  to  in  all 
its  changes;  and  he  is  absolutely  important 
there  every  moment  from  the  time  the  cur 
tain  rises  until  it  falls.  There  are  intervals, 
it  is  true,  but  he  can  not  judge  how  long  or 
how  brief  a  scene  may  be. 

On  Friday,  the  day  of  the  assassination,  I 
was  in  Richmond.  Hearing  of  the  partial 
destruction  of  that  city  by  fire,  I  went  there, 
anxious  to  ascertain  the  condition  of  an 
uncle,  a  very  aged  man,  and  my  mother-in- 
law.  1  did  not  hear  of  the  assassination 
until  Sunday  night,  and  then  I  heard  that 
Edwin  Booth  was  charged  with  it.  On  Mon 
day  morning  I  started  for  Washington  by 
the  6  o'clock  boat.  While  on  the  boat  I  saw 
the  Richmond  Whig,  which  confirmed  the 
report  I  had  heard  of  the  assassination  on 
Sunday  night. 

During  the  performance  of  the  "  American 
Cousin,"  Spangler's  presence  on  the  stage 
would  be  necessary.  The  first  scene  of  the 
third  act  is  quick,  only  of  a  few  moments' 
duration.  The  second  scene  is  rather  a  long 
one,  longer  perhaps  than  any  other  scene  in 
that  act,  probably  eight,  ten,  or  twelve  minutes 
long.  Spangler's  presence  would  be  neces 
sary  unless  positively  informed  of  the  dura 
tion  of  the  scene. 


The  second  act  depends  very  much  upon 
the  action  and  the  spirit  of  the  actors  en 
gaged  in  it.  Sometimes  it  is  much  more 
rapid  than  at  others.  In  the  second  act  I 
hardly  think  there  is  an  interval  of  more 
|  than  five  or  eight  minutes  between  the  times 
that  Spangler  would  have  to  move  the  scenes. 
His  constant  presence  upon  the  stage  would 
be  absolutely  necessary  if  he  attended  to  his 
duties. 

In  the  intervals  between  the  scenes,  he 
should  be  preparing  for  the  next  change,  to 
be  ready  at  his  scene,  and  to  remain  on  the 
side  where  the  stage-carpenter  had  assigned 
him  his  post  of  duty  ;  besides,  emergencies 
often  arise  during  an  act  that  require  extra 
services  of  a  stage  hand. 

J.  B.  Wright  was  the  stage-manager, 
James  J.  Gi fiord  the  stage-carpenter.  The 
stage-manager  directs,  the  stage-carpenter 
executes  the  work  belonging  to  the  entire 
stage.  The  duty  of  keeping  the  passage-way 
clear  and  in  a  proper  condition  belongs  to 
Giffbrd's  subordinates,  the  stage  hands  who 
were  on  the  side  where  this  passage  is.  It  is 
the  duty  of  each  and  every  one  to  keep  the 
passage-way  clear,  and  is  as  indispensable  as 
keeping  the  front  door  clear.  The  action  of 
the  play  might  be  ruined  by  any  obstruction 
or  hinderance  there. 

My  positive  orders  are  to  keep  it  always 
clear  and  in  the  best  order.  It  is  the  pas- 
sage-\vay  used  by  all  the  parties  coming  from 
the  dressing-rooms.  Where  a  play  was  per 
formed  like  the  "American  Cousin,"  the 
ladies  were  in  full  dress,  and  it  was  abso 
lutely  necessary  that  there  should  be  no 
obstruction  there,  in  order  that  the  play 
should  be  properly  performed.  Coming  from 
the  dressing-rooms  and  the  green-room  of  the 
theater,  every  one  had  to  use  that  passage. 
The  other  side  of  the  stage  was  not  used 
more  than  a  third  as  much,  probably.  Most 
of  the  entrances  by  the  actors  and  actresses 
are  made  on  the  prompt  side;  but  many  are 
essential  to  be  made  on  the  0.  P.  side.  By 
entrances  to  the  stage,  I  mean  to  the  pres 
ence  of  the  audience.  The  stage-manager 
was  a  very  exacting  man  in  all  those  details, 
and  I  have  always  found  the  passage  clear, 
unless  there  was  some  spectacular  play,  in 
which  he  required  the  whole  spread  of  the 
stage.  Then  at  times  it  would  be  partly  in- 
cumbered,  but  not  enough  so  to  prevent  the 
people  going  around  the  stage,  or  going  to 
the  cellar-way  and  underneath,  and  passing 
to  the  other  side  by  way  of  the  cellar. 

The  "  American  Cousin  "  was  a  very  plain 
play  ;  no  obstruction  whatever  could  be  ex 
cused  on  account  of  that  play;  it  was  all 
what  we  call  flats,  except  one  scene.  The 
flats  are  the  large  scenes  that  cross  the 
stage. 

The  prompt  side,  the  side  on  which  the 
prompter  is  located,  is  the  position  of  the 
stage-carpenter,  and  opposite  to  where 
Spangler  worked,  which  is  on  the  0.  P.  side, 


DEFENSE  OF  EDWARD  SPANGLER. 


103 


opposite  the  prompter's  place.  Keeping  the 
passage-way  clear  would  not  be  a  duty  of 
Spangler's,  unless  he  was  specially  charged 
with  it. 

Spangler,  I  know,  considered  Baltimore 
his  home.  He  buried  his  wife  there  about  a 
year  ago,  or  less,  while  in  my  employ.  He 
usually  spent  his  summer  months  there, 
during  the  vacation  of  the  theater,  chiefly  in 
crab-fishing.  I  have  understood  he  was  a 
great  crab-fisher;  we  used  to  plague  him 
about  it. 

[Exhibiting  a  coil  of  rope  found  at  Spangler's  boarding- 
bouse,  in  his  carpet-bag.] 

That  rope  might  be  used  as  a  crab-line, 
though  it  is  rather  short  for  that  purpose. 
Professional  crab-fishers  use  much  longer 
ropes  than  this,  four  hundred  or  five  hun 
dred  feet  long,  though  I  have  seen  ropes  as 
short  as  this,  which  I  understand  is  eighty 
feet,  used  by  amateurs  in  that  sport.  The 
rope  is  supported  by  a  buoy,  and  to  it  are 
attached  smaller  ropes  or  lines. 

Spangler  seemed  to  have  a  great  admira 
tion  for  J.  Wilkes  Booth;  I  have  noticed 
that  in  my  business  on  the  stage  with  the 
etage-manager. 

Booth  was  a  peculiarly  fascinating  man, 
and  controlled  the  lower  class  of  people, 
such  as  Spangler  belonged  to,  more,  I  sup 
pose,  than  ordinary  men  would.  Spangler 
was  not  in  the  employ  of  Booth,  that  I  know, 
and  only  since  the  assassination  have  I  heard 
that  he  was  in  the  habit  of  waiting  upon 
him.  I  have  never  known  Spangler  to  wear 
a  moustache. 

I  have  known  John  Wilkes  Booth  since 
his  childhood,  and  intimately  for  six  or  seven 
years. 

Q.  State  whether  you  have  ever  heard 
Booth  speak  of  Samuel  K.  Chester,  and,  if 
so,  in  what  connection  and  where. 

Assistant  Judge  Advocate  BINGHAM.  I 
object  to  any  proof  about  what  he  said  in 
regard  to  Chester. 

Q.  [By  Mr.  EWING.]  State  whether  or 
not  Booth  ever  applied  to  you  to  employ 
Chester,  who  has  been  a  witness  for  the  pros 
ecution,  in  your  theater. 

Assistant  Judge  Advocate  BINGHAM.  That 
I  object  to.  It  is  certainly  not  competent  to 
introduce  declarations  of  Booth  made  to  any 
body  in  the  absence  of  a  witness  that  may 
be  called,  relative  to  a  transaction  of  his,  to 
affect  him  in  any  way  at  all.  I  object  to  it 
as  wholly  incompetent 

Mr.  EWING.  It  is  not  to  attack  Chester, 
may  it  please  the  Court,  that  I  make  this 
inquiry,  but  rather  to  corroborate  him;  to 
show  that  Booth,  while  manipulating  Ches 
ter  to  induce  him  to  go  into  a  conspiracy  for 
the  capture  of  the  President,  was  actually  at 
the  same  time  endeavoring  to  induce  Mr. 
Ford  to  employ  Chester,  in  order  that  he 
might  get  him  here  to  the  theater  and  use 
him  as  an  instrument;  and  it  goes  to  affect 
the  case  of  several  prisoners  at  the  bar — the 


case  of  the  prisoner,  Arnold,  who  in  his  con 
fession,  as  orally  detailed  here,  stated  that  the 
plan  was  to  capture  the  President,  and  Ches 
ter  corroborates  that;  and  also  to  assist  the 
case  of  the  prisoner,  Spangler,  by  showing  that 
Booth  was  not  able  to  get,  or  did  not  get,  in 
the  theater  any  instruments  to  assist  him  in 
the  purpose,  and  was  endeavoring  to  get 
them  brought  there — men  that  he  had  pre 
viously  manipulated.  I  think  it  is  legiti 
mate. 

Assistant  Judge  Advocate  BINGHAM.  Noth 
ing  can  be  clearer,  if  the  Court  please,  than 
that  it  is  utterly  incompetent.  It  is  not  a 
simple  question  of  relevancy  here;  it  is  ab 
solute  incompetency.  A  party  who  conspires 
to  do  a  crime  may  approach  the  most  up 
right  man  in  the  world  with  whom  he  has 
been,  before  the  criminality  was  known  to 
the  world,  on  terms  of  intimacy,  and  whose 
position  in  the  world,  was  such  that  he  might 
be  on  terms  of  intimacy  with  reputable  gen 
tlemen.  It  is  the  misfortune  of  a  man  that 
is  approached  in  that  way;  it  is  not  his 
crime,  and  it  is  not  colorably  his  crime 
either.  It  does  not  follow  now,  because 
Booth  chose  to  approach  this  man  Chester, 
that  Booth  is  therefore  armed  with  the 
power,  living  or  dead,  to  come  into  a  court 
of  justice  and  prove  on  his  own  motion,  or 
on  the  motion  of  anybody  else,  what  he  may 
have  said  touching  that  man  to  third  per 
sons.  The  law  is  too  jealous  of  the  reputa 
tion  and  character  of  men  to  permit  any 
such  proceedings  as  that. 

The  Commission  sustained  the  objection. 

Q.  Do  you  think  that  the  leap  from  the 
President's  box  upon  the  stage  would  be  at 
all  a  difficult  one  for  Booth  ? 

A.  I  should  not  think  so;  I  have  seen 
him  make  a  similar  leap  without  any  hesi 
tation,  and  I  am  aware  that  he  usually  in 
troduced  such  a  leap  into  the  play  of  "  Mac 
beth." 

Q.  Do  you  think,  then,  from  your  know 
ledge  of  the  physical  powers  of  Booth,  that 
that  leap  wag  one  that  he  would  not  need  to 
rehearse  ? 

A.  I  should  not  think  a  rehearsal  of  it  was 
needed.  He  was  a  very  bold,  fearless  man; 
he  always  had  the  reputation  of  being  of 
that  character.  He  excelled  in  all  manly 
sports.  We  never  rehearse  leaps  in  the  ftiea- 
ter,  even  when  they  are  necessary  to  the 
action  of  the  play ;  they  may  be  gone  over 
the  first  time  a  play  is  performed,  but  it  is 
not  usual.  Booth  had  a  reputation  for  being 
a  great  gymnast  He  introduced,  in  some 
Shakspearian  plays,  some  of  the  most  extra 
ordinary  and  outrageous  leaps — at  least  they 
were  deemed  so  by  the  critics,  and  were  con 
demned  by  the  press  at  the  time. 

I  saw  him  on  one  occasion  make  one  of 
these  extraordinary  leaps,  and  the  Baltimore 
Sun  condemned  it  in  an  editorial  the  next 
jay — styling  him  "  the  gymnastic  actor." 
It  was  in  the  play  of  "Macbeth,"  the  ea- 


104 


THE    CONSPIRACY    TRIAL. 


trance  to  the  witch  scene;  he  jumped  from 
a  high  rock  down  on  the  stage,  as  high  or 
perhaps  higher  than  the  box;  1  think  nearly 
as  high  as  from  the  top  of  the  scene;  and  he 
made  the  leap  with  apparent  ease. 

Booth  was  in  the  habit  of  frequenting 
Ford's  Theater  at  Washington.  I  seldom 
visited  the  theater  but  what  I  found  him 
about  or  near  it,  during  the  day,  while  I  was 
there.  I  usually  came  down  to  the  theater 
three  days  a  week,  devoting  the  other  three 
to  my  business  in  Baltimore,  and  being  there 
between  the  hours  of  10  and  3.  1  would 
nearly  always  meet  Booth  there  when  he 
was  in  the  city.  He  had  his  letters  directed 
to  the  theater,  and  that  was  the  cause  of 
his  frequent  visits  there,  as  I  thought  then. 
The  last  time  I  saw  Booth  was  some  two  or 
three  weeks  before  the  assassination. 

The  last  appearance  of  John  McCullough 
at  my  theater  in  Washington  was  on  the  18th 
of  March,  the  night,  I  believe,  when  the 
"Apostate "  was  played.  Mr.  McCullough 
always  appears  with  Mr.  Forrest,  and  he  has 
since  appeared  in  New  York. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  can  not  state  positively  that  the  private 
boxes  are  locked  when  not  in  actual  use ; 
that  is  our  custom  in  Baltimore.  Mr.  Gif- 
ford,  who  had  control  of  the  whole  theater, 
is  the  responsible  party  whom  I  should 
blame  for  any  thing  wrong  about  the  boxes. 
We  keep  the  boxes  locked,  and  the  keys  in 
the  box-office  ;  here,  I  understand,  the  custom 
is  for  the  ushers  to  keep  the  keys.  James 
O'Brien  was  the  usher  of  the  dress-circle, 
and  James  R.  Ford  and  Henry  Clay  Ford 
were  the  parties  authorized  to  sell  tickets  for 
those  boxes  that  day. 

Q.  Do  you  know  as  a  fact  that  none  of 
the  boxes  were  occupied  that  night,  except 
that  occupied  by  the  President? 

A.  I  have  only  heard  so. 

Q.  Is  the  play  of  the  "American  Cousin  ' 
a  popular  one  ?  Does  it  attract  considerable 
audiences  ? 

A.  It  was,  when  originally  produced,  an 
exceedingly  attractive  play  ;  of  late  years  it 
has  not  been  a  strong  card,  but  a  fair  at 
traction. 

Q.  Is  it  not  a  very  unusual  thing,  when 
such  plays  are  produced,  for  your  private 
boxes  to  be  entirely  empty? 

A.  Washington  is  a  very  good  place  for 
selling  boxes  usually.  They  are  generally  in 
demand,  and  nearly  always  two  or  three 
boxes  are  sold. 

Q.  Can  you  recall  any  occasion  on  which 
a  play,  so  popular  and  attractive  as  that  was, 
presented  when  none  of  your  private  boxes, 
save  tiie  one  occupied  by  the  President,  was 
used  ? 

A.  I  remember  occasions  when  we  sold 
no  boxes  at  all,  and  had  quite  a  full  house — 
a  good  audience;  but  those  occasions  were 


I  rare.  My  reason  for  constructing  so  many 
boxes  to  this  theater  was,  that  usually  pri 
vate  boxes  were  in  demand  in  Washington — 
more  so  than  in  almost  any  other  city.  It 
is  not  a  favorable  place  to  see  a  performance, 
but  it  is  a  fashionable  place  here  to  which 
to  take  company. 

Recalled  for  the  Defense.-^- June  9. 
By  MR.  EWIXG. 

I  have  known  Edward  Spangler  for  nearly 
four  years.  He  has  been  in  my  employ  most 
of  that  time.  He  was  always  regarded  as  a 
very  good-natured,  kind,  willing  man.  His 
only  fault  was  in  occasionally  drinking  more 
liquor  than  he  should  have  done,  not  so  as 
to  make  him  vicious,  but  more  to  unfit  him 
to  work.  Since  he  has  been  in  my  employ 
I  never  knew  him  to  be  in  but  one  quarrel, 
and  that  was  through  drink.  He  was  always 
willing  to  do  any  thing,  and  was  a  very  good, 
efficient  drudge.  He  was  considered  a  very 
harmless  man  by  the  company  around  the 
theater,  and  was  often  the  subject  of  sport 
and  fun.  I  do  not  think  he  was  intrusted 
with  the  confidence  of  others  to  any  extent- 
He  had  not  many  associates.  He  had  no 
self-respect,  and  was  a  man  that  rarely  slept 
in  a  bed;  he  usually  slept  in  the  theater. 
I  never  knew  any  thing  of  his  political  senti 
ments  in  this  city;  never  heard  from  him  an 
expression  of  partisan  or  political  feeling. 
In  Baltimore  he  was  known  to  be  a  member 
of  the  American  Order. 

By  MR.  CLAMPITT. 

I  never  met  J.  Z.  Jenkins  except  in  Carroll 
Prison. 

JOSEPH  S.  SESSFORD. 
For  the  Defense. — June.  3. 

I  was  seller  of  tickets  at  Ford's  Theater. 
My  business  commenced  about  half-past  6  in 
the  evening. 

None  of  the  private  boxes,  except  that 
occupied  by  the  party  of  the  President,  were 
applied  for  on  the  evening  of  the  assassina 
tion,  nor  had  any  been  sold  during  the  day 
that  1  know  of. 

WILLIAM  WITHERS,  JR. 

Recalled  for  the  Defense. — May  31. 

By  MR.  EWING. 

The  door  leading  into  the  alley  from  the 
passage  was  shut  when  Booth  rushed  out. 
After  he  made  the  spring  from  the  box,  and 
ran  across  the  stage,  he  made  a  cut  at  me, 
and  knocked  me  down  to  the  first  entrance ; 
then  I  got  a  side  view  of  him.  The  door  was 
shut,  but  it  opened  very  easily;  I  saw  that 
distinctly.  He  made  a  plunge  right  at  the 
knob  of  the  door,  and  out  he  went,  and  pulled 
the  door  after  him.  He  swung  it  as  he  went 
out.  I  did  not  see  Booth  during  the  day. 


DEFENSE    OF   EDWARD    SPANGLER. 


105 


HENRY  M.  JAMES. 

For  the  Defense.— May  31. 

By  MR.  EWING. 

I  \\as  at  Ford's  Theater  on  the  night  of 
the  assassination.  When  the  shot  was  fired, 
I  was  standing  ready  to  draw  off  the  flat, 
and  Mr.  Spangler  was  standing  right  opposite 
to  me  on  the  stage,  on  the  same  side  as 
the  President's  box,  about  ten  feet  from  me. 
From  his  position  he  could  not  see  the  box, 
nor  the  side  of  the  stage  on  which  Booth 
jumped.  I  had  frequently  during  the  play 
seen  Spangler  at  his  post  I  saw  no  one 
with  him.  The  passage-way  was  clear  at 
the  time;  it  was  our  business  to  keep  it  clear; 
it  was  more  Spangler's  business  than  mine. 

I  saw  Spangler  when  the  President  entered 
the  theater.  When  the  people  applauded  on 
the  President's  entry,  he  applauded  with 
them,  with  both  hands  and  feet.  He  clapped 
his  hands  and  stamped  his  feet,  and  seemed 
as  pleased  as  anybody  to  see  the  President 
come  in. 

I  did  not  see  Jacob  Ritterspaugh  near 
Spangler  that  evening.  He  might  have  been 
there  behind  the  scenes,  but  I  did  not  see 
him.  I  can  not  say  how  long  1  staid  in 
my  position  after  the  shot  was  tired;  it  might 
have  been  a  minute.  I  did  not  see  Spangler 
at  all  after  that  happened. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Jacob  Ritterspaugh  was  employed  there, 
and  it  was  his  business  to  be  there  behind 
the  scenes,  though  I  did  not  see  him. 

J.    L.    D  EBON  AY. 

For  the  Defense. — May  31. 
By  MR.'  EWING. 

I  was  playing  what  is  called  "  responsible 
utility"  at  Ford's  Theater  at  the  time  of 
the  assassination.  On  the  evening  of  the 
assassination,  Booth  came  up  to  the  alley 
door  and  said  to  me,  "Tell  Spangler  to 
come  tb  the  door  and  hold  my  horse."  I  did 
not  see  his  horse.  I  went  over  to  where 
Mr.  Spangler  was,  on  the  left-hand  side,  at 
his  post,  and  said,  "  Mr.  Booth  wants  you  to 
hold  his  horse."  He  then  went  to  the  door 
and  went  outside,  and  was  there  about  a 
minute,  when  Mr.  Booth  came  in.  Booth 
asked  me  if  he  could  get  across  the  stage.  I 
told  him  no,  the  dairy  scene  was  on,  and  he 
would  have  to  go  under  the  stage  and  come 
up  on  the  other  side.  About  the  time  that 
he  got  upon  the  other  side,  Spangler  called 
to  me,  "Tell  Peanut  John  to  come  here  and 
hold  this  horse;  I  have  not  time.  Mr. 
Gifford  is  out  in  the  front  of  the  theater,  and 
all  the  responsibility  of  the  scene  lies  upon 
me."  I  went  on  the  other  side  and  called 
John,  and  John  went  there  and  held  the 
horse,  when  Spangler  came  in  and  returned 
to  his  post. 


I  saw  Spangler  three  or  four  times  that  even 
ing  on  the  stage  in  his  proper  position.  I  saw 
him  about  two  minutes  before  the  shot  was 
fired.  He  was  on  the  same  side  I  was  on — 
the  same  side  as  the  President's  box.  About 
five  minutes  after  the  shot  was  fired  I  again 
saw  Spangler  standing  on  the  stage,  with  a 
crowd  of  people  who  had  collected  there. 

I  saw  Booth  when  he  made  his  exit.  I 
was  standing  in  the  first  entrance  on  the 
left-hand  side.  When  he  came  to  the  center 
of  the  stage,  I  saw  that  he  had  a  long  knife 
in  his  hand.  It  'seemed  to  me  to  be  a  double- 
edged  knife,  and  looked  like  a  new  one.  He 
paused  about  a  second,  I  should  think,  and 
then  went  off  at  the  first  entrance  to  the 
right-hand  side.  I  think  he  had  time  to  get 
out  of  the  back  door  before  any  person  was 
on  the  stage.  It  was,  perhaps,  two  or  three 
seconds  after  he  made  his  exit  before  I  saw 
any  person  on  the  stage  in  pursuit.  The 
first  person  I  noticed  was  a  tall,  stout  gentle 
man,  with  gray  clothes  on,  I  think,  and  I 
believe  a  moustache.  Booth  did  not  seem 
to  run  very  fast  across  the  stage ;  he  seemed 
to  be  stooping  a  little  when  he  ran  off. 
The  distance  he  ran  would  be  about  thirty- 
five  or  forty  feet;  but  he  was  off  the  stage 
two  or  three  seconds  before  this  gentleman 
was  on,  and  of  the  two,  I  think  Booth  was 
running  the  fastest. 

By  MR.  AIKEN. 

I  was  at  the  theater  at  12  o'clock  that 
day.  I  did  not  see  Booth  there. 

Recalled  for  the  Prosecution. — June  13. 

When  the  shot  was  fired  on  the  night  of 
the  assassination,  I  was  standing  on  the  leftr 
hand  side  of  the  first  entrance,  the  side  the 
President's  box  was  on.  About  a  minute  and 
a  half  or  two  minutes  after  Mr.  Stewart  left 
the  stage,  or  about  time  to  allow  of  his  getting 
to  the  back  door,  I  saw  Spangler  shove  the 
scene  back  to  give  the  whole  stage  to  the 
people  who  came  on.  I  do  not  know  who 
assisted  him.  Spangler  then  came  to  the 
front  of  the  stage  with  the  rest  of  the  people. 
There  was  then  a  cry  for  water.  I  started 
to  the  green-room,  and  he  came  the  same 
way.  About  a  half  dozen  of  us  went  to  get 
some  water  to  carry  it  to  the  private  box. 

When  Booth  wanted  Spangler  to  hold  his 
horse,  and  I  went  over  to  tell  him,  Spangler 
and  Sleichman  were  standing  close  to  each 
other  on  the  opposite  side  of  the  stage,  the 
side  of  the  .President's  box.  Hpangler  then 
left;  I  saw  him  go  out  to  Booth,  and  in  about 
a  minute  or  a  minute  and  a  half  Booth  came 
in. 

I  heard  no  conversation  between  Spangler 
and  Booth.  Booth  met  Spangler  at  the  door, 
and  was  standing  at  the  door  on  the  outside; 
the  door  was  about  half  open  when  Spangler 
went  out.  If  any  person  had  followed  Span 
gler  I  should  have  seen  him.  I  was  half-way 
between  the  back  door  and  the  green-room, 


106 


THE    CONSPIRACY   TRIAL. 


about  eighteen  or  twenty  feet  distant,  I  sup 
pose.  Booth,  when  he  came  in,  went  under 
the  stage  to  the  opposite  side,  and  went  out 
of  the  side  door;  I  went  under  the  stage  and 
crossed  with  him.  I  did  not  see  him  speak 
to  any  one.  I  was  in  front  of  the  theater 
about  five  minutes  before  the  assassination; 
I  did  not  see  Spangler  there. 

I  have  known  Spangler  for  about  six 
months.  I  have  never  seen  him  wear  a  mous 
tache.  He  is  a  man  that  has  been  a  little 
dissipated  a  considerable  portion  of  his  time — 
fond  of  spreeing  round.  He  is  free  in  con 
versation,  especially  when  in  liquor. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

When  Booth  passed  under  the  stage,  he 
went  through  the  little  side  passage,  level  with 
the  lower  floor  of  the  theater,  that  leads  out 
into  Tenth  Street;  that  side  passage  also 
leads  up  to  Mr.  Ford's  room.  I  went  out 
through  that  passage  to  the  front  of  the 
theater,  and  returned  by  the  same  way,  and 
had  taken  my  place  on  the  stage  when  the 
pistol  was  fired.  I  was  not  doing  any  thing, 
but  was  leaning  up  against  the  corner  of  the 
ecene  at  the  time.  We  were  waiting  for  the 
curtain  to  drop.  Mr.  Harry  Hawk  was  on 
the  stage  at  the  moment,  playing  in  a  scene. 

By  MR.  EWING. 

I  played  in  the  piece,  taking  the  part  of 
John  Wigger,  the  gardener. 

WILLIAM  II.  SMITH. 

For  the  Defense. — June  2. 

By  MR.  EWIXG. 

I  am  Superintendent  of  the  Botanical  Gar 
den.  Washington.  I  was  in  Ford's  Theater 
at  the  time  of  the  assassination.  I  saw  J. 
Wilkes  Booth  pass  oft'  the  stage,  and  Mr. 
Stewart  get  on  it.  Mr.  Stewart  was  among 
the  first  to  get  on  ;  but  my  impression  is  that 
Booth  was  off  the  stage  before  Mr.  Stewart 
got  on  it.  I  did  not  notice  him  after  he  got 
on  the  stage. 

J.  P.  FERGUSON. 
Recalled  for  the  Defense. — May  31. 

I  saw  the  gentleman  who  first  got  upon  the 
stage  after  Booth  got  off.  He  was  a  large 
man,  dressed  in  light  clothes,  with  a  mous 
tache.  This  gentleman  was  the  first  that  got 
upon  the  stage,  and  I  suppose  it  was  probably 
two  or  three  minutes — about  that  long — after 
Booth  went  off  the  stage  that  this  man  went 
out  of  the  entrance.  I  saw  no  one  else  run 
out  of  the  entrance  except  Hawk,  the  young 
man  who  was  on  the  stage  at  the  time  Booth 
jumped  from  the  box.  If  any  one  had  run 
out  of  the  entrance  following  Booth,  I  should 
probably  have  seen  him,  because  I  thought 
it  was  very  singular  that  those  who  were  near 
the  stage  did  not  try  to  get  on  it. 


Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  sat  in  the  dress-circle  on  the  north  side, 
the  same  side  as  the  entrance  through  which 
Booth  passed.  From  the  place  wheie  I  sat  I 
could  not  distinctly  see  the  mouth  of  the 
entrance. 

JAMES   LAMB. 

For  the  Defense. — June  2. 
By  MR.  EWING. 

For  over  a  year  I  have  been  employed  at 
Ford's  Theater  as  artist  arid  scene-painter. 

[The  rope  found  in  Spangler'a  bag  exhibited  to  the  wit 
ness.] 

I  have  seen  ropes  like  this  at  the  theater. 
There  are  probably  forty  or  fifty  of  such  ropes 
in  use  there.  They  are  called  border-ropes, 
and  ^are  about  seventy  or  eighty  feet  in  length, 
used  for  suspending  the  borders  that  hang 
across  the  stage.  The  borders  are  long  strips 
of  canvas,  painted  to  represent  some  exteriors, 
others  interiors,  and  as  they  are  required  to 
be  changed  for  the  scene  that  is  on,  they  are 
raised  or  lowered  by  means  of  such  ropes  as 
these.  This  rope  has  the  appearance  of 
having  been  chafed;  a  new  rope  would  be  a 
little  stifler  in  its  texture  than  this.  I  should 
say  this  is  a  new  rope,  but  has  been  in  use, 
though  I  can  not  detect  any  thing  that  would 
lead  me  to  say  it  has  been  in  use  as  a  border- 
rope;  if  it  had  been,  there  would  have  been 
a  knot  fastening  at  the  end,  or  have  the  ap 
pearance  of  having  been  tied. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

B I  NO  HAM. 

I  think  it  is  a  rope  very  similar  to  the 
ones  used  at  the  theater,  but  I  should  be  very 
sorry  to  swear  that  it  was  one  of  them.  I 
should  say  the  material  was  manilla. 

I  know  John  Wilkes  Booth  by  sight.  I 
never  spoke  a  word  to  him  in  my  life.  I  did 
not  hear  him  say  any  thing  in  March  or 
April  last  about  the  President.  I  never  was 
in  his  company. 

By  MR.  EWING. 

From  an  examination  of  the  rope,  I  have 
no  reason  to  believe  that  it  was  not  used  as 
a  border-rope.  I  \vas  in  the  theater  the 
whole  of  Saturday,  the  day  after  the  Presi 
dent  was  assassinated,  from  10  o'clock  until 
the  military  guard  took  possession,  and  I  saw 
Spangler  there  several  times  during  the  day. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

I  saw  him  on  the  stage.  Maddox,  Jake, 
Mr.  Gifford,  and  Mr.  Wright,  the  stage-man 
ager,  were  in  and  out  occasionally.  Garland 
was  also  there  with  Spangler,  Maddox,  and 
myself,  in  the  forenoon,  loitering  and  walk 
ing  about,  sometimes  sitting  down ;  there 
was  no  companionship  particularly.  I  have 
not  seen  Spangler  since  until  this  morning. 


DEFENSE  OF  EDWARD  SPANGLER. 


107 


JACOB  RITTERSPAUGH. 

Recalled  for  the  Defense. — June  2. 

By  MR.  EWING. 

When  I  was  in  the  theater  with  Mr 
Lamb,  the  next  day  after  the  assassination, 
I  told  him  about  Spangler  slapping  me  and 
Baying,  "Shut  up;  don't  say  which  way  he 
went;"  and  on  toe  night  of  the  assassina 
tion,  when  Garland  came  up  to  Mr.  Gifford'<= 
room,  he  woke  me  up  and  asked  where  Ned 
was.  I  told  him  I  did  not  know,  and  then 
I  told  him  that  Ned  had  slapped  me  in  the 
mouth,  and  said,  "Don't  say  which  way  he 
went." 

As  I  was  on  the  stage  with  Spangler  on 
the  day  of  the  assassination,  we  saw  a  man 
in  the  dress-circle  smoking  a  cigar.  I  asked 
Spangler  who  it  was,  but  he  did  not  know; 
and  I  said  we  ought  to  tell  him  to  go  out; 
but  Spangler  said  he  had  no  charge  on  that 
side  of  the  theater,  and  had  no  right  to  do 
so.  I  took  no  more  notice  of  him,  and  went 
to  my  work  again.  After  awhile  I  saw  him 
sitting  in  the  lower  private  box,  on  the  right- 
hand  side  of  the  stage.  He  was  looking  at 
us.  I  told  Ned,  and  he  spoke  to  him,  and 
then  the  man  went  out.  That  was  about  6 
o'clock  on  the  evening  of  the  day  on  which 
the  President  was  assassinated.  That  was 
about  6  o'clock  in  the  evening. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  never  saw  the  man  before.  He  wore  a 
moustache.  I  saw  him  first  in  the  dress- 
circle,  then  in  the  lower  private  box  on  the 
right-hand  side  of  the  stage,  the  left-hand 
when  you  come  in  from  the  front  of  the 
theater. 

JAMES   LAMB. 

Recalled  for  the  Defense. — June  2. 

I  saw  Ritterspaugh  on  the  stage  on  Satur 
day,  the  day  following  the  President's  assas 
sination.  Ritterspaugh  was  grumbling,  and 
saying  that  it  was  well  .for  Ned  that  he 
had  n't  something  in  his  hand  at  the  time. 
I  asked  him  why.  He  replied,  "  He  struck 
me  last  night  a  very  hard  blow,  and  he  said 
at  the  same  time,  'Shut  up;  you  know 
nothing  about  it.'  "  This  was  said  in  con 
nection  with  Ritterspaugh  having  said  it  was 
Booth  that  ran  across  the  stage.  Ritter- 
epaugh  said  he  called  out,  "I  know  him;  I 
know  who  it  was;  it  was  Booth,"  or  some 
thing  of  that  kind,  and  then  Ned  struck  him 
and  said  "Hush  up;  be  quiet.  What  do 
you  know  abcmt  it?"  That  was  while  Mr. 
Booth,  or  whoever  it  was,  was  leaving  the 
stage.  It  was  when  he  was  making  his  es 
cape  that  this  man  Jake  said  he  was  rushing 
up  and  made  this  exclamation,  "  That  was 
Booth  ;  I  know  him  ;  I  know  him  ;  I  will 
swear  that  was  Booth ;  "  when  Ned  turned 
round  and  struck  him  in  the  face  with  his 


hand.  Ritterspaugh  said,  "It  is  well  for 
him  I  had  not  something  in  my  hand  to 
return  the  blow."  Then  he  represented 
Spangler  as  saying,  when  he  slapped  him, 
"Hush  up;  hush  up;  you  know  nothing 
about  it.  What  do  you  know  about  it?  Keep 
quiet;  "  hushing  him  up. 

Ritterspaugh  did  not  say  to  me  that  when 
Spangler  hit  him  on  the  face  he  said,  "  Don't 
say  which  way  he  went."  I  am  certain  Rit 
terspaugh  did  not  say  that  to  me,  or  words  to 
that  effect. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Q.  Can  you  tell  just  exactly  the  words  he 
did  say,  that  you  have  sworn  to  already  ? 
A.  Yes,  sir. 

Q.  State  tliern. 

A.  "  Shut  up;  what  do  you  know  about  it? 
Hold  your  tongue." 

Q.  That  is  what  Jake  said  ? 

A.  That  is  what  Spangler  said  to  Jake. 

Q.  Are  you  now  reporting  what  Jake  said, 
or  reporting  what  Spangler  said  ? 

A.  I  am  reporting  what  Spangler  said  and 
what  Jake  said. 

Q.  We  are  not  asking  you  for  what  Span 
gler  said  ;  we  are  asking  you  what  Jake  said. 
State,  if  you  please,  what  Jake  said  on  that 
occasion,  and  exactly  what  you  have  sworn 
ie  said,  and  all  he  said. 

A.  I  will,  as  near  as  I  can  recollect.  As  he 
told  me,  he  said,  "  I  followed  out  the  party, 
s  close  at  his  heels,  or  near  to  him,  and  I 
said  that  is  Booth.  I  know  him  ;  I  know 
lim  ;  "  or  words  to  that  effect,  as  near  as  can 
be. 

Q.  Jake  said  he  followed  out  the  party, 
close  to  his  heels  ? 

A.  Near  to  him. 

Q.  And  that  he  knew  who  that  was  ? 

A.  He  did  not  say  that  he  followed  the 
party. 

Q.  I  am  asking  you   what  he  said.     Did 

u  not  swear  just  now  that  he  said  he  fol- 
owed  the  party  close  to  his  heels  ? 

A.  He  was  near  to  him. 

Q.  Did  you  or  did  you  not  swear  that  he 
aid  he  followed  the  party  close  to  his  heels? 

A.  You  know  whether  I  swore  it  or  not. 

Q.  I  ask  you  whether  you  did  swear  to  it 
>r  not? 

A.  I  say  he  did. 

Q.  Very  well,  then,  stick  to  it.  Then 
Jake  said  he  followed  the  party  close  to  his 
leels  ? 

A.  Yes,  sir. 

Q.  And  he  knew  who  he  was  ? 

A.  Yes,  sir. 

Q.  What  more  did  Jake  say  ?  Did  he 
ay  he  came  back  after  following  him  close 
o  his  heels  ? 

A.  No ;  he  received  a  blow  from  Spangler, 
and  that  shut  him  up. 

Q.  Do  you  swear  now  that  Spangler  fol- 
owed  the  man  close  to  his  heels  ? 


108 


THE   CONSPIRACY   TRIAL. 


A.  No,  sir. 

Q.  Then  how  did  they  fix  it  ? 

A.  Spangler  was  standing  in  the  way. 

Q.  While  Jake  was  following  the  man 
close  to  his  heels  ? 

A.  No,  not  at  all. 

Q    How  was  that  ? 

A.  Spangler,  I  suppose — 

Q.  You  need  not  state  what  you  suppose. 
State  what  Jake  said.  That  is  the  only 
question  before  the  Court. 

A.  That  is  what  I  have  stated. 

Louis  J.  GARLAND. 

For  the  Defense. — June  12. 

By  MR.  EWING. 

I  am  acquainted  with  Jacob  Ritterspaugh. 
On  the  night  of  the  assassination  I  went  to 
Mr.  Gifford's  room,  and  Ritterspaugh  was 
there  asleep.  I  woke  him  up,  and  asked  him 
where  Spangler  was.  He  seemed  frightened, 
and  thought  I  was  Mr.  Booth. 

I  asked  him  where  Mr.  Spangler  was.  He 
told  me  he  did  not  know  where  he  was  now ; 
the  last  he  had  seen  of  Mr.  Spangler  was 
when  he  was  standing  behind  the  scenes,  and 
that  he  did  not  know  where  he  had  gone; 
that  when  the  man  was  running  past  he  had 
said  that  was  Mr.  Booth,  and  Spangler  had 
slapped  him  in  the  mouth  and  said  to  him, 
"  You  do  n't  know  who  it  is ;  it  may  be  Mr. 
Booth,  or  it  may  be  somebody  else." 

He  did  not  say  then  that  Spangler  slapped 
him  on  the  face  with  the  back  of  his  hand 
and  said,  "Don't  say  which  way  he  went." 
nor  any  thing  to  that  effect. 

I  did  not  see  Spangler  until  the  next  day; 
then  I  saw  him  in  the  theater,  on  the  stage. 
When  he  went  up  stairs  to  bed  on  the  Sat 
urday  night  after  the  assassination,  he  said 
there  was  some  talk  that  the  people  were 
going  to  burn  the  theater,  and  as  he  slept 
very  heavily,  he  was  afraid  to  sleep  UD  there ; 
so  I  took  him  into  my  room,  and  he  was 
there  all  night.  He  was  put  under  arrest 
that  night  in  my  room.  At  half-past  9 
o'clock  on  Sunday  morning  the  guard  came 
and  relieved  him,  and  when  I  was  discharged 
we  both  went  into  the  street.  I  went  to 
church,  and  in  the  afternoon  saw  Spangler 
again  in  the  street  near  the  theater.  We 
walked  round  together  that  afternoon,  and 
in  the  evening  went  down  to  Mr.  Bennett's, 
and  to  Mr.  Gurley's  on  C  street.  Some  one 
came  there  and  told  him  he  was  going  to  be 
arrested,  and  I  advised  him  at  once  to  go 
and  see  the  detectives,  and  not  have  them 
come  after  him  when  he  was  asleep  and  take 
him  out  of  his  bed.  I  went  to  Mr.  Barry, 
one  of  the  detectives,  and  asked  him  if  there 
was  any  such  report  at  the  police  head-quar 
ters,  arid  he  said  no.  I  know  that  Spangler 
had  very  little  money  those  two  days,  for  he 
wanted  to  see  Mr.  Giffbrd  to  get  some. 

Booth  frequented   the   theater  very  famil 


iarly  before  the  assassination.  He  was  there 
a  great  deal,  and  was  very  intimate  with  all 
the  employees,  and  called  them  by  name.  He 
was  a  gentleman  who  would  soon  get  ac 
quainted,  and  get  familiar  with  people  on  a 
very  short  acquaintance. 

[Exhibiting  to  witness  the  rope  found  in  Spangler'sbag.] 

We  use  just  such  ropes  as  that  in  the  thea 
ter  to  pull  up  the  borders  and  scenes,  and  for 
bringing  up  lumber  to  the  top  dressing-rooms, 
because  the  stairs  are  too  narrow.  About 
two  weeks  before  the  assassination,  we  used 
such  a  rope  as  that  to  haul  up  some  shelv 
ing  for  my  wardrobe,  through  the  window,  to 
the  fourth  story ;  Spangler  and  Ritterspaugh 
brought  it  up.  I  do  not  know  that  the  rope 
we  used  was  an  extra  one;  there  were  a  great 
many  ropes  around  the  theater.  I  am  not 
qualified  to  judge  about  how  much  the  rope 
has  been  used ;  this  one  does  not  look  like  an 
entirely  new  rope;  it  is  not  such  as  I  would 
buy  for  a  new  one;  it  looks  as  if  it  had  been 
exposed  out  of  doors,  or  in  the  rain. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Spangler  used  to  sleep  in  the  theater  before 
the  assassination,  and  he  slept  there  on  that 
night,  but  not  in  the  room  he  usually  slept 
in.  On  that  night  he  slept  in  the  carpenter's 
shop  attached  to  the  theater.  I  do  not  know 
where  he  slept  on  Sunday  night. 

It  was  about  12  o'clock  on  Friday  night 
when  I  woke  Ritterspaugh  up;  there  was  no 
one  with  me,  but  a  policeman  stood  in  the 
passage-way.  Mr.  GifFord's  bed  is  in  the 
manager's  office,  on  the  first  floor  of  the 
green-room;  that  is  where  I  found  Ritter 
spaugh.  He  was  frightened  when  I  woke 
him  up,  and  thought  it  was  Booth.  He  did 
not  say  any  thing  to  me  about  Booth  draw 
ing  a  knife  on  him.  When  I  asked,  "Where 
is  Ned  ? ''  he  said  he  did  not  know  where  he 
was ;  that  he  supposed  he  was  up.  I  made 
no  reply,  and  he  went  on  and  said  that  when 
Booth  ran  out  through  the  passage-way,  while 
he  and  Ned  were  standing  behind  the  scenes, 
he  made  the  remark,  "  That  is  Mr.  Booth," 
and  Ned  slepped  him  in  the  mouth  and  said, 
"  You  do  n't  know  whether  it  is  Mr.  Booth, 
or  who  it  is."  That  is  all  that  I  remember 
he  said. 

I  never  told  it  to  any  one  but  Mr.  William 
Withers,  jr.  I  dined  with  him  on  the  Sun 
day  after  the  assassination,  and  told  him 
then. 

By  MR.  EWING. 

The  carpenter-shop  is  attached  to  the  theater 
just  the  same  as  my  wardrobe  is.  It  is  not 
in  the  theater  building,  but  it  is  included  in 
the  theater.  You  do  not  have  to  go  into  the 
street  to  get  to  it.  You  leave  the  theater, 
and  there  is  a  passage-way  to  go  up,  the  same 
as  we  have  to  go  to  the  green-room  and  the 
dressing-rooms. 

Ritterspaugh  had  fully  waked  up  when  he 


DEFENSE  OF  EDWAKD  SPANGLER. 


109 


told  me  that;  he  stood  up  and  recognized  me. 
He  knew  who  it  was  before  he  began  to 
speak. 

The  theater  was  guarded  on  Sunday  night, 
but  any  of  the  employees  who  slept  there 
could  get  in.  Mr.  Spangler  had  a  pass  from 
the  captain  or  officer  of  the  guard  to  go  in 
and  out  when  he  liked,  and  on  Saturday  I 
had  a  pass  for  that  purpose. 

JAMES  J.  GIFFORD. 

Recalled  for  the  Defense. — May  30. 

By  MR.  EWING. 

On  Monday  evening  of  the  week  previous 
to  the  assassination,  1  heard  Booth  tell  Span- 

fler  to  take  his  horse  and  buggy  down  to 
attersall's,  the  hgrse-market,  and  sell  it.  I 
presume  Spangler  sold  it.  He  brought  the 
man  up  with  him,  and  asked  me  to  count 
the  money  and  give  him  a  receipt.  I  took 
the  money  and  handed  it  over  to  Booth. 

Q.  State  whether  or  not,  since  the  assas 
sination,  and  previous  to  his  release  from  Car 
roll  Prison,  Ritterspaugh  told  you  at  the 
prison  that  the  prisoner,  Edward  Spangler, 
directly  after  the  assassination  of  the  Presi 
dent  in  the  theater,  hit  him  in  the  face  with 
the  back  of  his  hand  and  said,  "  Do  n't  say 
which  way  he  went." 

A.  To  the  best  of  my  knowledge,  I  never 
heard  him  say  so.  He  asked  me  if  he  could 
amend  the  statement  that  he  had  made.  He 
said  he  had  not  told  all  he  knew,  and  he 
asked  me  if  he  could  amend  it.  I  told  him 
certainly,  but  he  ought  to  be  particular  and 
state  the  truth  of  what  he  knew.  That  is  all 
the  conversation  we  ever  had  regarding  it. 
He  told  me  he  had  made  a  misstatement,  and 
had  not  told  all  he  knew.  He  did  not  say 
what  he  had  omitted;  if  he  had,  I  should 
surely  have  remembered  it,  for  I  have  had 
nothing  but  this  case  to  think  about  since  I 
have  been  in  the  Old  Capitol  Prison. 

If  any  thing  was  wrong  about  the  locks  on 
the  private  boxes  at  the  theater,  it  was  the 
duty  of  the  usher  to  inform  ine,  and  for  me 
to  have  them  repaired.  No  repairing  was 
done  to  any  door  leading  to  the  President's 
box  since  August  or  September  of  last  year. 

I  have  frequently  heard  of  Spangler  going 
crab-fishing,  but  1  never  saw  him.  He  has 
told  me  of  going  down  to  the  Neck  on  the 
Saturday  night,  and  staying  till  Monday 
morning ;  ancf  I  have  heard  others  say  that 
they  had  gone  crabbing  with  him. 

[Exhibiting  to  the  witness  the  rope  found  in  Spanglera 
bag.j 

They  use  a  line  of  that  sort,  with  small 
lines  tied  to  it,  about  three  feet  apart,  and 
pieces  of  meat  attached  as  bait.  The  line  is 
trailed  along,  and  as  the  crabs  seize  the  bait 
they  are  dragged  along  and  taken.  I  have 
seen  ropes  similar  to  this  used,  and  sometimes 
a  little  longer.  As  there  is  but  little  strain 
upon  the  rope,  it  is  not  particular  about  the 
size. 


By  MR.  AIKEN. 

I  saw  J.  Wilkes  Booth,  about  half-past  11. 
or  12  o'clock  on  the  14th,  pass  the  stage  en 
trance  and  go  to  the  front  door.  He  bowed 
to  me,  but  we  had  no  conversation. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

It  is  fully  three  weeks  ago  that  Ritter 
spaugh  said  he  was  scared,  and  that  he  could 
not  tell  what  he  was  doing;  but  I  do  not  re 
member  his  precise  words.  He  seemed  to  be 
troubled  about  it,  and  asked  me  if  he  could 
not  make  a  correct  statement,  and  I  told  him 
certainly  he  could. 

THOMAS  J.  RAYBOLD. 

For  the  Defense. — June  2. 

By  MR.  EWING. 

I  have  been  engaged  at  Ford's  Theater 
since  the  first  Monday  of  December  a  year 
ago.  I  was  employed  to  take  charge  of  the 
house;  to  see  to  the  purchasing  of  every 
thing  required  in  the  house,  and  if  any  re 
pairs  were  needed,  they  were  done  through 
my  order.  In  the  absence  of  the  Messrs. 
Ford,  I  was  in  the  box-office  and  sold  the 
tickets. 

I  know  of  the  lock  on  the  door  of  box  8, 
the  President's  box,  as  it  is  called,  being 
burst  open  during  Mrs.  Bowers's  engagement 
in  March.  On  the  7th  of  March  Mr.  Mer- 
rick,  of  the  National  Hotel,  asked  me,  while 
at  dinner,  to  reserve  some  seats  in  the  orches 
tra  for  some  company,  which  I  did.  It  is 
customary,  after  the  first  act  is  over,  for 
reserved  seats,  which  have  not  been  occu 
pied,  to  be  taken  by  any  person  wanting 
seats.  Mr.  Merrick  did  not  come  by  the 
end  of  the  first  act,  and  the  seats  were  oc 
cupied.  Shortly  afterward  word  was  sent  to 
me  in  the  front  office,  saying  that  Mr.  Mer 
rick  and  his  friends  were  there,  and  inquiring 
for  the  seats.  I  took  them  up  stairs  to  a 
private  box,  No.  6,  but  it  was  locked,  and  I 
could  not  get  in ;  I  went  then  to  boxes  7  and 
8,  generally  termed  the  President's  box,  and 
they  were  also  locked.  I  could  not  find  the 
keys,  and  I  supposed  the  usher  had  them; 
but  he  had  left  the  theater,  as  he  frequently 
does,  when  the  first  act  is  over;  so  I  put  my 
shoulder  against  the  door  of  No.  8,  the  box 
nearest  the  stage,  to  force  it  open,  but  it  did 
not  give  way  to  that,  and  I  stood  from  it 
with  my  back  and  put  my  foot  against  it 
close  to  the  lock,  and  with  two  or  three 
kicks  it  came  open.  There  is  another  lock 
in  the  house  to  which  I  did  the  same  thing 
when  I  could  not  find  the  key.  When  the 
President  came  to  the  theater,  boxes  7  and 
8  were  thrown  into  one  by  the  removal  of 
:he  partition  between  them.  The  door  to 
No.  8 — the  one  I  burst  open — was  the  one 
always  used,  and  was  the  door  used  on  the 


110 


THE    CONSPIRACY   TRIAL. 


night  of  the  assassination.     The  other  door 
could  not  be  used. 

I  do  not  know  whether  the  lock  was  ever 
repaired  after  I  burst  it  open.  It  was  my 
place  to  report  it  to  Mr.  Gifford  and  have  it 
repaired,  but  I  never  thought  of  it  from  that 
time.  1  frequently  entered  the  box  afterward, 
and  always  passed  in  without  a  key.  I 
never  said  a  word  to  Mr.  Gifford  about  re 
pairing  the  lock,  and  never  thought  even  of 
examining  it  to  see  what  condition  it  was 
in.  The  Jocks  were  only  used  to  keep  per 
sons  out  when  the  boxes  were  not  engaged. 
I  have  frequently  had  to  order  persons  out 
when  the  boxes  were  left  open. 

About  two  weeks  prior  to  the  14th  of 
April,  J.  Wilkes  Booth  engaged  a  private 
box,  No.  4,  at  Ford's  Theater,  and  in  the 
afternoon  he  came  again  to  the  office  and 
asked  for  an  exchange  of  the  box,  and  I 
believe  it  was  made  to  box  7.  I  can  not  be 
positive  whether  it  was  box  7  or  8,  that  he 
occupied  that  night,  but  I  think  it  was  7. 
It  is  the  door  leading  into  box  7  that  has 
the  hole  bored  in  it. 

To  the  best  of  my  knowledge,  there  were 
no  tickets  sold  up  to  the  time  of  the  open 
ing  of  the  theater  on  the  night  of  the  assas 
sination;  I  can  not  say  positively,  for  I  had 
been  sick  with  neuralgia  for  several  days, 
and  was  not  in  the  office  the  whole  of  the 
day.  I  was  there  in  the  morning,  between 
10  and  11,  when  the  messenger  obtained 
tickets  for  the  President,  and  again  in  the 
afternoon,  but  do  not  know  of  any  applica 
tions,  and  if  there  had  been,  I  should  have 
seen  when  I  counted  the  house  at  night, 
which  I  did  on  the  night  of  the  assassina 
tion,  at  10  o'clock,  as  usual. 

I  saw  Booth  on  the  morning  of  the  14th 
at  the  office;  I  do  not  know  whether  before 
or  after  the  box  was  engaged  for  the  Presi 
dent.  I  know  he  got  a  letter  from  the  office 
that  morning.  Booth's  letters  were  directed 
to  Mr.  Ford's  box  at  the  post-office,  and  he 
generally  came  every  morning  for  them. 
Mr.  Ford  would  get  the  letters  as  he  came 
from  breakfast  in  the  morning,  and  bring 
them  to  the  office,  when  the  letters  that 
belonged  to  the  stage  would  be  sent  there, 
and  those  belonging  to  Booth  would  be  called 
for  by  him. 

The  rocking-chair  was  placed  in  the  posi 
tion  it  occupied  in  the  President's  box  simply 
because,  in  any  other  position,  the  rockers 
would  have  been  in  the  way.  When  the 
partition  was  taken  down,  it  left  a  triangular 
corner,  and  the  rockers  went  into  that  cor 
ner  at  the  left  of  the  balustrade  of  the  box ; 
they  were  there  out  of  the  way.  That  was 
the  only  reason  why  I  put  it  there.  I  had 
U  so  placed  on  two  occasions  before;  last 
winter  a  year  ago,  when  Mr  Hackett  was 
playing,  when  the  President  was  there.  The 
sofa  and  other  parts  of  the  furniture  had 
been  used  this  last  season,  but  up  to  that 
night  the  chair  had  not. 


[Exhibiting  to  the  witness  the  coil  of  rope  found  in 
Spangler's  carpet-bag.] 

I  can  not  swear  that  this  rope  has  been 
used  at  the  theater,  but  we  used  such  ropes 
as  this  at  the  time  of  the  Treasury  Guard's 
ball,  from  the  lobby  to  the  wings,  to  hang 
the  colors  of  different  nations  on.  It  is  like 
the  kind  of  rope  we  use  in  the  flies  for 
drawing  up  the  different  borders  that  go 
across  from  one  wing  to  the  other.  From  its 
appearance,  I  judge  this  rope  has  been  used. 
It  would  be  lighter  in  color  if  it  had  not 
been. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Any  rope  that  was  used  about  the  theater. 
I  should  judge,  ought  to  stay  there;  I  do 
not  think  its  proper  place  would  be  in  a 
carpet-sack  half  a  mile  off.  We  use  a  great 
many  such  ropes  ;  and  sometimes,  when  they 
are  taken  down,  they  lie  upon  the  scene-loft 
until  we  need  them  again. 

The  outer  door,  or  door  of  the  passage  to 
the  President's  box,  never  had  a  lock  on;  I 
do  not  think  it  has  even  a  latch  on.  I  do  not 
know  whether  the  force  I  employed  against 
the  door  burst  the  lock  or  the  keeper  off;  I 
supposed  at  the  time  that  it  started  the  keeper. 
The  fastening  on  the  door  is  of  pine  I  be 
lieve;  I  do  not  know  whether  it  was  split  or 
not;  I  did  not  examine  it.  I  did  not  touch 
box  7. 

The  last  time  I  was  in  the  President's  box 
was  on  the  morning  after  the  assassination  ; 
I  went  in  with  some  gentlemen  to  look  at 
ihe  hole  in  the  door.  I  did  not  see  the 
'mortise  in  the  wall,  nor  any  piece  of  wood 
to  fasten  the  door  with,  nor  did  I  see  the 
mortise  the  previous  afternoon.  I  was  there 
but  for  about  five  minutes,  while  the  flags 
were  being  put  up.  The  chair  was  in  the 
box  when  I  went  in  to  help  put  up  the  flags; 
it  was  placed  behind  the  door  of  box  No.  7, 
with  the  rockers  in  the  corner  toward  the 
audience.  I  did  not  see  him  in  the  box,  but 
my  opinion  is  that  the  way  the  chair  was 
placed,  the  audience  was  rather  behind  the 
President  as  he  sat  in  the  chair. 

I  can  not  say  the  precise  day  on  which 
Booth  occupied  box  No.  7.  Mr.  Ford  was  the 
one  who  sold  him  the  box  and  exchanged  it. 
There  were  ladies  and  men  with  Booth,  I 
think. 

By  MR.  EWINQ» 

I  can  not  state  whether  it  was  after  Booth 
played  Pescara  that  he  occupied  that  box.  To 
the  best  of  my  recollection,  it  was  about  two 
weeks  before  the  assassination  ;  it  might  have 
been  more.  He  had  the  box  on  two  oc 
casions.  Once  when  he  engaged  it,  he  did 
not  use  it;  he  told  me  that  the  ladies  at  the 
National  Hotel  had  disappointed  him. 

I  do  not  know  any  thing  at  all  as  to 
whether  Spangler  got  that  rope  from  the 
theater  rightfully  or  not. 


DEFENSE  OF  EDWARD  SPANGLER. 


Ill 


Recalled  for  the  Defense. — June  2. 
By  MR.  EWING. 

Since  I  was  upon  the  stand,  I  have  visited 
Ford's  Theater,  and  examined  the  keepers  of 
the  locks  of  boxes  Nos.  7  and  8.  The  lock 
of  box  8  is  in  the  condition  that  I  stated  this 
morning.  It  has  been  forced,  and  the  wood 
has  been  split  by  forcing  the  lock.  The 
screw  in  the  keeper  is  tight,  and  the  keeper 
has  been  forced  aside.  The  lock  on  the 
door  of  box  7  has  been  forced,  which  I  was 
not  aware  of  until  I  saw  it  just  now.  You 
can  take  the  upper  screw  out  with  your 
finger,  and  push  it  in  and  out;  you  can  put 
your  thumb  against  it,  and  put  it  in  to  the 
full  extent  of  the  screw.  I  can  not  say  as 
to  its  having  been  done  with  an  instrument. 
It  must  have  been  done  by  force;  I  know 
that  No.  8  was  done  by  force  applied  to  the 
outside  of  the  door;  the  other  has  a  similar 
appearance. 

Cross-examined  by  ASSISTANT  JUDGE  ADTOCATE 

BlNGHAM. 

The  wood  in  box  7  is  not  split  a  particle. 
The  reason  why  I  think  force  has  been  used 
with  that  lock  is,  that  if  the  screw  was 
drawn  by  a  screw-driver,  when  it  went  back 
again  it  would  have  to  be  put  back  by  the 
driver,  but  when  force  has  been  used,  it 
would  make  the  hole  larger,  and  you  could 
put  the  screw  in  and  out  just  as  you  can  the 
screw  in  the  door  of  box  7. 

By  MR.  AIKEN. 

I  do  not  know  John  H.  Surratt.  I  do  not 
know  any  of  the  prisoners  except  Spangler. 
He  is  the  only  one  I  ever  saw  with  the  ex 
ception  of  one,  [Herold,]  whom  I  knew  when 
he  was  quite  a  boy. 

HENRY  E.  MERRICK. 

For  the  Defense. — June  2. 

By  MR.  EWING. 

I  am  a  clerk  at  the  National  Hotel,  Wash 
ington.  On  the  evening  of  the  7th  of  March, 
in  company  with  my  wife,  Mr.  Marcus  P. 
Norton  of  Troy,  N.'Y.,  Miss  Engels,  and 
Mrs.  Bunker,  I  went  to  Ford's  Theater.  Mr. 
Raybold  took  us  to  a  private  box.  We 
passed  down  the  dress-circle  on  the  right- 
hand  side,  and  entered  the  first  box ;  there 
was  a  partition  up  at  the  time  between  the 
two  boxes.  Mr.  Raybold  went  to  the  office 
for  the  key,  but  could  not  find  it.  He  then 
placed  his  shoulder,  I  think,  against  the  door 
and  burst  it  open.  The  keeper  was  burst 
off  I  think;  at  least  the  screw  that  held 
the  upper  part  of  the  keeper  came  out,  and 
it  whirled  around,  and  hung  by  the  lower 
screw. 

Our  books  show  that  John  McCullough, 
the  actor,  left  the  National  Hotel  on  the  26th 
of  March ;  since  then  I  have  not  seen  him. 


I   have    never   known    him  to   stop   at   any 
other  hotel  than  the  National. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Mr.  McCullough  may  have  called  on  some 
friend  in  the  house,  and  I  not  see  him.  I 
have  not  seen  him  since  the  26th  of  March. 

It  was  the  very  first  box  that  we  went  into 
on  visiting  the  theater  on  the  7th  of  March; 
the  partition  was  between  the  box  we  occu 
pied  and  the  one  to  our  right,  further  on 
toward  the  stage.  The  box  nearest  the  stage 
we  did  not  enter  at  all.  It  was  the  very  first 
box  we  came  to  that  we  entered,  and  it 
was  the  door  of  this  box  that  was  burst  open. 
The  upper  screw  came  out  entirely,  and  the 
keeper  swung  round  on  the  lower  screw,  and 
left  the  lock  without  any  fastening  at  all. 

JAMES   O'BRIEN. 
For  the  Defense. — June  3. 

I  have  been  employed  as  clerk  in  the  Quar 
ter-master  General's  office.  I  also  had  an 
engagement  at  night  as  usher  at  Ford's 
Theater. 

Some  time  before  the  assassination  I  noticed 
that  the  keeper  of  box  8  had  been  wrenched 
off.  I  was  absent  one  evening,  at  home  sick, 
and  when  I  came  next  I  found  that  the  keeper 
was  broken  off;  but,  as  the  door  shut  pretty 
tight,  I  never  thought  of  speaking  about  it. 
You  might  lock  the  door,  but  if  you  were  to 
shove  it,  it  would  come  open. 

The  keeper  on  box  No.  7  appeared  to  be 
all  right ;  I  always  locked  that  box.  The 
door  of  No.  8  was  used  when  the  Presidential 
party  occupied  the  box;  when  the  party  oc 
cupying  the  Presidential  box  entered,  the  door 
was  always  left  open.  The  door  of  the  pas 
sage  leading  to  the  two  boxes  had  no  lock  on 
it,  or  fastening  of  any  kind. 

JOSEPH  T.  K.  PLANT. 

For  the  Defense. — June  2. 
By  MR.  EWING. 

My  occupation  at  present  is  that  of  a  dealer 
in  furniture;  ever  since  I  was  fourteen  years 
old  I  have  been,  more  or  less,  engaged  in 
cabinet  work.  I  have  visited  Ford's  Theater 
to-day,  and  have  examined  the  keepers  on 
boxes  No.  7  and  No.  8.  To  all  appearances 
they  have  both  been  forced.  The  wood-work 
in  box  8  is  shivered  and  splintered  by  the 
screws.  In  box  7, 1  could  pull  the  screw  with 
my  thumb  and  finger;  the  tap  was  gone  clear 
to  the  point.  I  could  force  it  back  with  my 
thumb.  In  box  4,  which  is  directly  under  box 
8,  the  keeper  is  gone  entirely. 

I  should  judge  that  the  keepers  in  boxes  7 
and  8  were  made  loose  by  force ;  I  could  not 
see  any  evidence  of  an  instrument  having 
been  used  to  draw  the  screws  in  either  of 
them. 


112 


THE    CONSPIRACY    TRIAL. 


I  noticed  a  hole  in  the  wall  of  the  passage 
behind  the  boxes;  it  had  the  appearance  of 
having  been  covered  with  something;  I  could 
not  see  what,  as  no  remnant  of  it  was  left,  in 
size  about  five  by  seven  and  a  half  or  eight 
inches.  I  noticed  also  a  hole,  a  little  more 
than  one-fourth  of  an  inch  in  diameter,  in 
the  door  of  box  7.  It  is  larger  on  the  outside 
than  it  is  on  the  inside.  The  left  side  of  the 
hole  feels  rough,  as  if  cut  by  a  gimlet,  while 
the  lower  part  on  the  right-hand  side  appears 
to  have  been  trimmed  with  a  penknife  or 
some  sharp  instrument.  The  hole  might,  I 
think,  have  been  made  by  a  penknife,  and 
the  roughness  might  have  been  caused  by  the 
back  of  the  knife. 

G.  W.  BUNKER. 
For  the  Defense. — June  2. 

I  am  clerk  at  the  National  Hotel.  The 
day  after  the  assassination  I  packed  Booth's 
effects  at  the  National,  and  had  his  trunk  re 
moved  into  our  baggage-room.  In  his  trunk 
I  found  a  gimlet  with  an  iron  handle.*  I 
carried  it  to  my  room,  and  afterward  gave  it 
to  Mr.  Hall,  who  was  attending  to  Mr.  Ford's 
business. 

John  McCullough,  who  always  made  his 
home  at  the  National,  I  find  registered  his 
name  the  last  time  on  March  11;  he  left  on 
the  26th  of  March. 


*  The  gimlet  would  bore  a  hole  three-sixteenths  of  an 
inch  in  diameter. 


CHARLES  A.  BOIGI. 

For  the  Defense. — June  2. 

By  MR.  EWING. 

I  know  the  accused,  Edward  Spangler;  he 
boarded  at  the  house  where  I  boarded.  He 
boarded  there  five  or  six  months,  I  presume, 
before  the  assassination,  and  I  saw  him  at 
and  about  the  house  as  usual  for  several  days 
afterward.  They  had  him  once  or  twice  in 
the  station-house,  I  believe,  before  he  was 
finally  arrested ;  I  do  not  recollect  the  date 
of  his  final  arrest 

JOHN  GOENTHER. 

For  the  Defense. — June  2. 

J5y  MR.  EWING. 

I  boarded  in  the  same  house  with  the  ac 
cused,  Edward  Spangler,  previous  to  his  ar 
rest.  He  boarded  there  on  and  off  for  six  or 
seven  months,  perhaps  longer.  I  have  lived 
there  off  and  on  for  the  last  three  years.  To  my 
certain  knowledge,  I  saw  Spangler  about  the 
house  for  two  or  three  days  before  the  assassin 
ation  ;  I  never  saw  him  wear  a  moustache. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  am  not  certain  what  days  it  was  that  I 
saw  Spangler  at  the  house.  He  did  not  sleep 
there.  I  used  to  see  him  in  the  morning,  and 
of  evenings  when  I  came  from  work.  I  work 
in  the  arsenal,  and  generally  take  my  dinner 
with  me. 


TESTIMONY 


RELATING   TO 


MRS.  MARY  E.  SURRATT 


[See  testimony  of  John  M.  Lloyd,  page  85.]] 

Louis  J.  WEICHMANN 

For  the  Prosecution. — May  13. 

I  have  been  clerk  in  the  office  of  General 
Hoffman,  Commissary-General  of  prisoners, 
since  January  9,  1864. 

My  acquaintance  with  John  H.  Surratt 
commenced  in  the  fall  of  1859,  at  St.  Charles 
College,  Maryland.  We  left  college  together 
in  the  summer  of  1862,  and  I  renewed  my 
acquaintance  with  him  in  January,  1863,  in 
this  city.  On  the  1st  of  November,  1864,  I 
went  to  board  at  the  house  of  his  mother, 
Mra.  Surratt,  the  prisoner,  No.  541  H  Street, 
between  Sixth  and  Seventh,  and  boarded 
there  up  to  the  time  of  the  assassination. 

On  the  2d  of  April,  Mrs.  Snrratt  asked  me 
to  see  J.  Wilkes  Booth,  and  say  that  she 
wished  to  see  him  on  "  private  business.1' 
I  conveyed  the  message,  and  Booth  said  he 
would  come  to  the  house  in  the  evening,  as 
soon  as  he  cquld;  and  he  came. 

On  the  Tuesday  previous  to  the  Friday 
of  the  assassination,  I  was  sent  by  Mrs. 
Surratt  to  the  National  Hotel  to  see  Booth, 
for  the  purpose  of  getting  his  buggy.  She 
wished  me  to  drive  her  into  the  country  on 
that  day.  Booth  said  that  he  had  sold  his 
buggy,  but  that  he  would  give  me.  $10  in 
stead,  that  I  might  hire  one.  He  gave  me 
the  $10,  and  I  drove  Mrs.  Surratt  to  Surratts- 
ville  on  that  day,  leaving  this  city  about  9 
and  reaching  Surrattsville  about  half-past  12 
o'clock.  We  remained  at  Surrattsville  half 
an  hour,  or  probably  not  so  long.  Mra.  Sur 
ratt  stated  that  she  went  there  for  the  pur 
pose  of  seeing  Mr.  Nothe,  who  owed  her  some 
money. 

On  Friday,  the  day  of  the  assassination,  I 
went  to  Howard's  stable,  about  half-past  2 
o'clock,  having  been  sent  there  by  Mrs.  Sur 
ratt  for  the  purpose  of  hiring  a  baggy.  She 
herself  gave  me  the  money  on  that  occasion, 
a  ten-dollar  note,  and  1  paid  $6  for  the 
buggy.  I  drove  her  to  Surrattsville  the  same 
dav,  arriving  thore  about  half-past  4.  We 
8 


stopped  at  the  house  of  Mr.  Lloyd,  who 
keeps  a  tavern  there.  Mrs.  Surratt  went  into 
the  parlor.  I  remained  outside  a  portion 
of  the  time,  and  went  into  the  bar-room  a 
part  of  the  time,  until  Mrs.  Surratt  sent  for 
me.  We  left  about  half-past  6.  Surratte- 
ville  is  about  a  two-hours'  drive  to  the  city, 
and  is  about  ten  miles  from  the  Navy  Yard 
bridge. 

Just  before  leaving  the  city,  as  I  was  going 
to  the  door,  I  saw  Mr.  Booth  in  the  parlor, 
and  Mrs.  Surratt  was  speaking  with  him. 
They  were  alone.  He  did  not  remain  in  the 
parlor  more  than  three  or  four  minutes;  and 
immediately  after  he  left,  Mrs.  Surratt  and  I 
started. 

I  saw  the  prisoner,  Atzerodt,  at  Howard's 
stable,  when  I  went  to  hire  the  buggy  that 
afternoon.  I  asked  him  what  he  wanted, 
and  he  said  he  was  going  to  hire  a  horse, 
but  Brook  Stabler  told  .him  he  could  not 
have  one. 

I  remember  going  with  John  H.  Surratt 
to  the  Herndon  House,  about  the  19th  of 
March,  for  the  purpose  of  renting  a  room. 
He  inquired  for  Mrs.  Mary  Murray,  who 
kept  the  house;  and  when  she  came,  Sur 
ratt  said  that  he  wished  to  have  a  private 
interview  with  her.  She  did  not  seem  to 
comprehend;  when  he  said,  "Perhaps  Miss 
Anna  Ward  has  spoken  to  you  about  this 
room.  Did  she  not  speak  to  you  about  en 
gaging  a  room  for  a  delicate  gentleman,  who 
was  to  have  his  meals  sent  up  to  his  room  ?" 
Then  Mrs.  Murray  recollected,  and  Mr.  Sur 
ratt  said  he  would  like  to  have  the  room 
the  following  Monday,  I  think,  the  27th  of 
March,  when  the  gentleman  would  take  pos 
session  of  it.  No  name  was  mentioned.  I 
afterward  heard  that  the  prisoner,  Payne, 
was  at  the  Herndon  House.  One  day  I  met 
Atzerodt  on  the  street,  and  asked  him  where 
he  was  going.  He  said  he  was  going  to 
see  Payne.  I  then  asked,  "Is  it  Payne  who 
is  at  the  Herndon  House?"  He  said,  "Yes," 
That  was  after  the  visit  John  H.  Surratt  had 
made  to  engage  the  room. 

About  the   17th   of  March    last,    a  Mrs. 

(113) 


114 


THE    CONSPIRACY    TRIAL. 


Slater  came  to  Mrs.  Surratt's  house,  and 
stopped  there  one  night.  This  lady  went  to 
Canada  and  Richmond.  On  Saturday,  the 
23d  of  March,  John  Surratt  drove  her  and 
Mrs.  Surratt  into  the  country  in  a  buggy, 
leaving  about  8  o'clock  in  the  morning,  tie 
hired  a  two-horse  team,  white  horses,  from 
Howard's.  Mrs.  Surratt  told  me  on  her  re 
turn  that  John  had  gone  to  Richmond  with 
Mrs.  Slater.  Mrs.  Slater,  I  understood,  was 
to  have  met  a  man  by  the  name  of  ITowell, 
a  blockade-runner;  but  he  was  captured  on 
the  24th  of  March,  so  Surratt  took  her  back 
to  Richmond.  Mrs.  Slater,  as  I  learned 
from  Mrs.  Surratt,  was  either  a  blockade-run 
ner  or  a  bearer  of  dispatches 

Surratt  returned  from  Richmond  on  the 
3d  of  April,  the  day  the  news  of  the  fall  of 
Richmond  was  received.  I  had  some  con 
versation  with  him  about  the  fall  of  Rich 
mond,  and  he  seemed  incredulous.  He  told 
me  he  did  not  believe  it;  that  he  had  seen 
Benjamin  and  Davis  in  Richmond,  and  they 
had  told  him  that  Richmond  would  not  be 
evacuated. 

Surratt  only  remained  in  the  house  about 
an  hour,  when  he  told  me  he  was  going  to 
Montreal,  and  asked  me  to  walk  down  the 
street  with  him  and  take  some  oysters.  He 
left  that  evening,  saying  he  was  going  to 
Montreal,  and  I  have  not  seen  him  since. 

I  eaw  about  nine  or  eleven  $20  gold 
pieces  in  his  possession,  and  $50  in  green 
backs,  when  he  came  back  from  Richmond; 
and  just  before  leaving  for  Canada,  he  ex 
changed  $40  of  gold  for  $60  in  greenbacks, 
with  Mr.  Holahan. 

I  afterward  learned  in  Montreal  that  Sur 
ratt  arrived  there  6n  the  6th  of  April,  and 
left  on  the  12th  for  the  States;  returned  on 
the  18th,  and  engaged  rooms  at  the  St.  Law 
rence  Hall,  and  left  again  that  night,  and 
was  seen  to  leave  the  house  of  a  Mr.  Porter- 
field,  in  company  with  three  others,  in  a 
wagon.  I  arrived  at  Montreal  on  the  19th, 
and  my  knowledge  was  derived  from  the  reg 
ister  of  St.  Lawrence  Hall. 

I  saw  a  letter  from  John  Surratt  to  his 
mother,  dated  St.  Lawrence  Hall,  Montreal, 
April  12th,  which  was  received  here  on  the 
14th  ;  I  also  saw  another  letter  from  him  in 
Canada  to  Miss  Ward,  but  that  was  prior  to 
the  letter  to  his  mother. 

About  the  15th  of  January  last  I  was 
passing  down  Seventh  Street,  in  company 
with  John  H.  Surratt,  and  when  opposite 
Odd  Fellows'  Hall,  some  one  called  "Sur 
ratt,  Surratt;"  and  turning  round,  he  recog 
nized  an  old  acquaintance  of  his,  Dr.  Samuel 
A.  Mudd,  of  Charles  County,  Md. ;  the  gen 
tleman  there  [pointing  to  the  accused,  .Sam 
uel  A.  Mudd.]  He  and  John  Wilkes  Booth 
were  walking  together.  Surratt  introduced 
Dr.  Mudd  to  me,  and  Dr.  Mudd  introduced 
Booth  to  both  of  us.  They  were  coining 
down  Seventh  Street,  and  we  were  going  up. 
Booth  invited  us  to  his  room  at  the  Na 


tional  Hotel.  When  we  arrived  there,  he 
told  us  to  be  seated,  and  ordered  cigars  and 
wines  for  four.  Dr.  Mudd  then  went  out 
into  a  passage  and  called  Booth  out,  and 
had  a  private  conversation  with  him.  When 
they  returned,  Booth  called  Surratt,  and  all 
three  went  out  together  and  had  a  private 
conversation,  leaving  me  alone.  I  did  not 
hear  the  conversation ;  I  was  seated  on  a 
lounge  near  the  window.  On  returning  to 
the  room  the  last  time  Dr.  Mudd  apologized 
to  me  for  his  private  conversation,  and 
stated  that  Booth  and  he  had  some  private 
business;  that  Booth  wished  to  purchase  his 
farm,  but  that  he  did  not  care  about  selling 
it,  as  Booth  was  not  willing  to  give  him 
enough.  Booth  also  apologized,  and  stated 
to  me  that  he  wished  to  purchase  Dr.  Mudd's 
farm.  Afterward  they  were  seated  round 
the  center-table,  when  Booth  took  out  an 
envelope,  and  on  the  back  of  it  made  marks 
with  a  pencil.  I  should  not  consider  it 
writing,  but  from  the  motion  of  the  pencil 
it  was  more  like  roads  or  lines. 

After  this  interview  at  the  National  Hotel 
Booth  called  at  Mrs.  Surratt's  frequently, 
generally  asking  for  Mr.  John  II.  Surratt, 
and  in  his  absence  for  Mrs.  Surratt.  Their 
interviews  were  always  apart  from  other  per 
sons.  I  have  been  in  the  parlor  in  company 
with  Booth,  when  Booth  has  taken  Surratt 
up  stairs  to  engage  in  private  conversation. 
Sometimes,  when  engaged  in  general  conver 
sation,  Booth  would  say,  "John,  can  you  go 
up  stairs  and  spare  me  a  word?"  They 
would  then  go  up  stairs  and  engage  in  pri 
vate  conversation,  which  would  sometimes 
last  two  or  three  hours.  The  same  thing 
would  sometimes  occur  with  Mrs.  Surratt. 

When  I  saw  Booth  at  the  National  Hotel 
on  the  Tuesday  previous  to  the  assassination, 
to  obtain  his  buggy  for  MM.  Surratt,  he 
spoke  about  the  horses  that  he  kept  at  How 
ard's  stable,  and  I  remarked,  "  Why,  I 
thought  they  were  Surratt's  horses."  He  said, 
No,  they  are  mine." 

John  H.  Surratt  had  stated  to  me  that  he 
had  two  horses,  which  he  kept  at  Howard's 
stable,  on  G  Street. 

Some  time  in  March  last,  I  think,  a  man 
calling  himself  Wood  came  to  Mrs.  Surratt's 
and  inquired  for  John  II.  Surratt,  I  went  to 
the  door  and  told  him  Mr.  Surratt  was  not 
at  home;  he  thereupon  expressed  a  desire  to 
see  Mrs.  Surratt,  and  I  introduced  him,  hav- 
ng  first  asked  his  name.  That  is  the  man 
'pointing  to  Lewis  Payne,  one  of  the  accused.] 
He  stopped  at  the  house  all  night.  He  had 
supper  served  up  to  him  in  my  room ;  I  took 
it  to  him  from  the  kitchen.  He  brought  no 
baggage;,  he  had  a  black  overcoat  on,  a 
black  dress-coat,  and  gray  pants.  He  re 
mained  till  the  next  morning,  leaving  by  the 
earliest  train  for  Baltimore.  About  three 
weeks  afterward  he  called  again,  and  I  again 
went  to  the  door.  I  had  forgotten  his  name, 
and,  asking  him,  he  gave  the  name  of  Payne. 


TESTIMONY    CONCERNING   MRS.  MARY    E.   SURRATT. 


115 


I  ushered  him  into  the  parlor,  where  were 
Mrs.  Surratt,  Miss  Surratt,  arid  Miss  Honora 
Fitzpatrick.  He  remained  three  days  that 
time.  He  represented  himself  as  a  Baptist 
preacher;  and  said  that  he  had  been  in 
prison  in  Baltimore  for  about  a  week ;  that 
he  had  taken  the  oath  of  allegiance,  and 
was  now  going  to  become  a  good  and  loyal 
citizen. 

Mrs.  Surratt  and  her  family  are  Catholics. 
John  H.  Surratt  is  a  Catholic,  and  was  a 
student  of  divinity  at  the  same  college  as 
myself.  I  heard  no  explanation  given  why  a 
Baptist  preacher  should  seek  hospitality  at 
Mrs.  Surratt's ;  they  only  looked  upon  it  as 
odd,  and  laughed  at  it.  Mrs.  Surratt  herself 
remarked  that  he  was  a  great  looking  Bap 
tist  preacher.  In  the  course  of  conversation 
one  of  the  young  ladies  called  him  "Wood." 
I  then  recollected  that  on  his  first  visit  he 
had  given  the  name  of  Wood.  On  the  last 
occasion  he  was  dressed  in  a  complete  suit  of 
gray;  his  baggage  consisted  of  a  linen  coat 
and  two  linen  shirts. 

The  only  evidence  of  disguise  or  prepara 
tion  for  it,  that  I  know  of,  was  a  false  mous 
tache,  which  I  found  on  the  table  in  my  room 
one  day.  I  put  the  moustache  into  a  little 
toilet-box  that  was  on  my  table.  Payne 
afterward  searched  round  the  table  and  in 
quired  for  his  moustache.  I  was  sitting  on 
a  chair  and  did  not  say  any  thing.  I  re 
tained  the  moustache,  and  it  was  found  in 
iny  baggage  that  was  seized. 

On  returning  from  my  office  one  day,  while 
Payne  was  there,  I  went  up  stairs  to  the 
third  story  and  found  Surratt  and  Payne 
seated  on  a  bed,  playing  with  bowie-knives. 
There  were  also  two  revolvers  and  four  sets 
of  new  spurs, 

[A  spur,  a  large  bowie-knife,  and  a  revolver,  found  in 
Atz«rodt's  room  at  the  Kirkwood  House,  were  exhibited 
to  the  witness.] 

That  is  one  of  the  spurs.  There  were  three 
spurs  similar  to  that  in  a  closet  in  my  room 
when  I  was  last  there,  and  those  three  be 
longed  to  the  eight  that  had  been  purchased 
by  Surratt.  The  knives  they  were  playing 
with  were  smaller  than  that  knife.  The  re 
volvers  they  had  were  long  navy  revolvers, 
with  octangular  barrels;  that  has  a  round 
barrel. 

I  met  the  prisoner,  David  E.  Ilerold,  at 
Mrs.  Surratt's,  on  one  occasion ;  I  also  met 
him  when  we  visited  the  theater  when  Booth 
played  Pescara ;  and  I  met  him  at  Mrs. 
Surratt's,  in  the  country,  in  the  spring  of 
1863,  when  I  first  made  Mrs.  Surratt's  ac 
quaintance.  I  met  him  again  in  the  sum 
mer  of  1864,  at  Piscataway  Church.  These 
are  the  only  times,  to  my  recollection,  I  ever 
met  him.  I  do  not  know  either  of  the  pris 
oners,  Arnold  or  O'Laughlin.  I  recognize 
the  prisoner  Atzerodt.  He  first  came  to  Mrs. 
Surratt's  house,  as  near  as  I  can  remember, 
about  three  weeks  after  I  formed  the  acquaint 
ance  of  Booth,  and  inquired  for  John  H. 


Surratt,  or  Mrs.  Surratt,  as  he  said.  Since 
then  he  must  have  been  at  the  house  ten  or 
fifteen  times.  The  young  ladies  of  the  house, 
not  comprehending  the  name  that  he  gave, 
and  understanding  that  he  came  from  Port 
Tobacco,  in  the  lower  portion  of  Maryland, 
gave  him  the  nickname  of  "  Port  Tobacco." 
1  never  saw  him  in  the  house  with  Booth. 

At  the  time  Booth  played  the  part  of  Pea- 
cara,  in  the  u  Apostate,"  he  gave  Surratt  two 
complimentary  tickets,  and  as  Surratt  and  I 
were  going  to  the  theater,  we  met  Atzerodt 
at  the  corner  of  Seventh  Street  and  Pennsyl 
vania  Avenue,  and  told  him  where  we  were 
going.  He  said  he  was  going  there  too;  and 
at  the  theater  we  met  David  E.  Herold 
[pointing  to  the  accused,  David  E.  Herold, 
who  smiled  and  nodded  in  recognition.]  We 
also  met  Mr.  Holahan,  who  boarded  at  Mra. 
Surratt's. 

After  the  play  was  over,  all  five  of  us  left 
the  theater  together — Mr.  Surratt,  Holahan, 
and  myself,  in  company.  We  went  as  far  as 
the  corner  of  Tenth  and  E  Streets,  when  Sur 
ratt,  turning  round,  noticed  that  Atzerodt 
and  Herold  were  not  following,  and  desired 
me  to  go  back  after  them.  When  I  went 
back,  I  found  Atzerodt  and  Herold  in  the 
restaurant  adjoining  the  theater,  talking  very 
confidentially  with  Booth.  On  my  approach 
they  separated,  and  Booth  said,  u  Mr.  Weich- 
mann,  will  you  not  come  and  take  a  drink?" 
which  I  did.  We  then  left  the  restaurant, 
and  joined  the  other  two  gentlemen  on  E 
Street;  went  to  Kloman's  and  had  some  oys 
ters;  after  that  we  separated — Surratt,  Hol 
ahan,  and  myself  going  home,  arid  the  others 
going  down  Seventh  Street. 

Cross-examined  by  HON.  REVKRDY  JOHNSON. 

When  I  went  to  board  with  Mrs.  Surratt, 
in  November,  1864,  she  rented  her  farm  at 
Surrattsville  to  Mr.  Lloyd,  and  removed  to 
this  city.  Her  house  is  on  H  Street,  and 
contains  eight  rooms — six  large  and  two 
small.  Mrs.  Surratt  rented  her  rooms  and 
furnished  board.  Persons  were  in  the  habit 
of  coming  frdm  the  country  and  stopping  at 
her  house.  Mrs.  Surratt  was  always  very 
hospitable,  and  had  a  great  many  acquaint 
ances,  and  they  could  remain  as  long  as  they 
chose.  During  the  whole  time  I  have  known 
her,  her  character,  as  far  as  I  could  judge, 
was  exemplary  and  lady-like  in  every  par 
ticular;  and  her  conduct,  in  a  religious  and 
moral  sense,  altogether  exemplary.  She  was 
a  member  of  the  Catholic  Church,  and  a 
regular  attendant  on  its  services.  I  gen 
erally  accompanied  her  to  church  on  Sun 
day.  She  went  to  her  religious  duties  at 
least  every  two  weeks,  sometimes  early  in 
the  morning  and  sometimes  at  late  mass, 
and  was  apparently  doing  all  her  duties  to 
God  and  man  up  to  the  time  of  the  as 
sassination.  I  visited  Mrs.  Surratt  several 
times  during  '63  and  '64,  while  she  lived  in 
the  country.  I  made  her  acquaintance 


116 


THE    CONSPIRACY   TRIAL. 


through   her  son,    who   had  been   a   college- 
mate  of  mine  for  three  years. 

During  the  winter  of  1864,  John  Surratt 
was  frequently  from  home;  in  the  month  of 
November,  especially,  he  was  down  in  the 
country  almost  all  the  time.  His  stay  at 
home  was  not  at  all  permanent;  sometimes 
he  would  be  at  home  for  half  a  week,  and 
away  the  other  half;  sometimes  he  would  be 
three  or  four  weeks  at  a  time  in  the  country. 
I  do  not  know  of  his  being  in  Canada  in  the 
winter  of '64-5,  although  he  could  have  gone 
without  my  knowledge.  I  was  upon  very 
intimate  terms  with  him,  seeing  him  almost 
every  day  when  he  was  at  home;  we  sat  at 
the  same  table,  roomed  together,  and  shared 
the  same  bed. 

He  never  intimated  to  me.  nor  to  any  one 
else  to  my  knowledge,  that  there  was  a  pur 
pose  to  assassinate  the  President.  He  stated 
to  me,  in  the  presence  of  his  sister,  shortly 
after  he  made  the  acquaintance  of  Booth, 
that  he  was  going  to  Europe  on  a  cotton 
speculation  ;  that  $3,000  had  been  advanced 
to  him  by  an  elderly  gentleman,  whose  name 
he  did  not  mention,  residing  somewhere  in 
the  neighborhood  ;  that  he  would  go  to  Liv 
erpool,  and  remain  there  probably  only  two 
weeks  to  transact  his  business;  then  he 
would  go  to  Nassau;  from  Nassau  to  Mata- 
moras,  Mexico,  and  find  his  brother  Isaac, 
who  had  been  in  Magruder's  army  in  Texas 
since  1861. 

At  another  time  he  mentioned  to  me  that 
he  was  going  on  the  stage  with  Booth ;  that 
he  was  going  to  be  an  actor,  and  they  were 
going  to  play  in  Richmond. 

His  character  at  St.  Charles  College,  (Cath 
olic,)  Maryland,  was  excellent.  On  leaving 
college  he  shed  tears;  and  the  president,  ap 
proaching  him,  told  him  not  to  weep;  that 
his  conduct  had  been  so  excellent  during  the 
three  years  he  had  been  there,  that  he  would 
always  be  remembered  by  those  who  had 
charge  of  the  institution. 

On  the  occasion  of  Mrs.  Surratt' s  visit  to 
Surrattsville,  on  the  llth  of  April,  she  told 
me  she  had  business  with  Mr.  Nothe;  that 
he  owed  her  a  sum  of  money,  $479,  and  the 
interest  on  it,  for  thirteen  years.  On  arriving 
there,  about  half-past  12,  she  told  Mr.  Nott, 
the  bar-keeper,  to  send  a  messenger  imme 
diately  to  Mr.  Nothe.  In  the  mean  time, 
Mrs.  Surratt  and  myself  went  to  Captain 
Gwynn's  place,  three  miles  lower  down,  took 
dinner  there,  and  remained  about  two  hours. 
At  Mrs.  Surratt's  desire,  Captain  Gwynn  re 
turned  with  us  to  Lloyd's.  When  we  ar 
rived  there,  Mr.  Nott  said  that  Mr.  Nothe 
was  in  the  parlor.  They  went  in  and  trans 
acted  their  business;  but  I  did  not  go  in,  and 
did  not  see  Mr.  Nothe. 

Mrs.  Surratt's  second  visit  to  Surrattsville 
was  on  the  afternoon  of  the  14th  of  April. 
She  rapped  at  my  room-door  on  that  after 
noon,  and  told  me  she  had  received  a  letter 
from  Mr.  Charles  Calvert  in  regard  to  that 


money  that  Mr.  Nothe  owed  her,  and  that 
she  was  again  compelled  to  go  to  Surratts 
ville,  and  asked  me  to  take  her  down.  Of 
course  I  consented.  I  did  not  see  the  letter. 
We  took  with  us  only  two  packages;  one 
was  a  package  of  papers  about  her  prop 
erty  at  Surrattsville;  and  another  package, 
done  up  in  paper,  about  six  inches,  I  should 
think,  in  diameter.  It  looked  to  me  like 
perhaps  two  or  three  saucers  wrapped  up. 
This  package  was  deposited  in  the  bottom 
of  the  buggy,  and  taken  out  by  Mrs.  Surratt 
when  we  arrived  at  Surrattsville.  We  re 
turned  to  Washington  about  half-past  8  or 
9.  About  ten  minutes  after  we  got  back, 
some  one  rang  the  front-door  bell.  It  was 
answered  by  Mrs.  Surratt,  and  I  heard  foot 
steps  go  into  the  parlor,  immediately  go  out 
again,  and  down  the  steps.  I  was  taking 
supper  at  the  time. 

I  first  heard  of  the  assault  on  President 
Lincoln  and  the  attack  on  Secretary  Seward 
at  3  o'clock  on  Saturday  morning,  when  the 
detectives  came  to  the  house  and  informed 
us  of  it. 

The  first  time  that  Payne  came  to  Mrs. 
Surratt's,  when  he  gave  the  name  of  Wood, 
he  had  on  a  black  coat:  and  when  he  went 
into  the  parlor  he  acted  very  politely.  He 
asked  Miss  Surratt  to  play  on  the  piano, 
and  he  raised  the  piano-cover,  and  did  every 
thing  which  indicated  a  person  of  breeding. 
The  moustache  that  I  found  upon  my  table 
was  black,  and  of  medium  size;  it  was  suffi 
ciently  large  to  entirely  change  the  appear 
ance  of  the  wearer.  When  I  found  it  I 
thought  it  rather  queer  that  a  Baptist 
preacher  should  use  a  moustache;  I  thought 
no  honest  person  had  any  reason  to  wear 
one.  I  took  it  and  locked  it  up,  because  I 
did  not  care  to  have  a  false  moustache  lying 
round  on  my  table.  I  remember  exhibiting 
t  to  some  of  the  clerks  in  our  office,  and 
fooling  with  it  the  day  afterward;  I  put  on 
a  pair  of  spectacles  and  the  moustache,  and 
was  making  fun  of  it. 

Atzerodt,  to  my  knowledge,  stopped  in  the 
louse  only  one  night;  he  slept  alone  in  the 
back  room  in  the  third  story.  John  Surratt 
was  out  in  the  country;  he  returned  that 
evening;  and  Atzerodt,  who  had,  I  under 
stood,  been  waiting  to  see  John,  left  the  next 
lay.  I  afterward  heard  Miss  Anna  and  Mrs. 
Surratt  say  that  they  did  not  care  about 
laving  him  brought  to  the  house.  Misa 
Anna  Surratt's  expression  was,  she  didn't 
care  about  having  such  sticks  brought  to 
he  house;  that  they  were  not  company  for 
ner. 

John  Surratt  is  about  six  feet  high,  with 
very  prominent  forehead,  a  very  large  nose, 
and  sunken  eyes;  he  has  a  goatee,  and 
very  long  hair  of  a  light  color.  The  day  he 
left  for  Montreal  he  wore  cream-colored 
pants,  gray  frock-coat,  gray  vest,  and  a  plaid 
shawl  thrown  over  him. 

When    he    returned    from    Richmond,   he 


TESTIMONY    CONCERNING   MRS.  MARY    E.   SURRATT. 


had  nine  or  eleven  $20  gold  pieces ;  he  did  no 
tell  me  from  whom  he  got  them,  nor  di 
I  make  any  inquiries.  1  know  he  had  n 
gold  about  him  when  he  left  for  Richmond 
On  the  evening  of  the  14th,  Mrs.  Surrat 
showed  me  the  letter  she  had  received  tha 
day  from  John.  It  was  a  letter  on  genera 
subjects.  He  said  he  was  much  pleased  will 
the  city  of  Montreal,  and  with  the  Frencl 
cathedral  there;  that  he  had  bought  a  Frencl 
pea-jacket,  for  which  he  had  paid  $10  in  sil 
ver;  that  board  was  too  high  at  St.  Law 
rence  Hall,  $2.50  a  day  in  gold,  and  that  h< 
would  probably  go  to  some  private  boarding 
house,  or  that  he  would  soon  go  to  Toronto 
The  letter  was  signed  "John  Harrison,"  noi 
his  full  name;  his  name  is  John  Harrison 
Surratt 

By  MR.  EWING. 

Dr.  Mudd  introduced  Booth  to  John  H, 
Surratt  and  myself  about  the  15th  of  Jan 
uary.  I  could  fix  the  exact  date,  if  reference 
could  be  had  to  the  register  of  the  Pennsyl 
vania  House,  where  Dr.  Mudd  had  a  room 
at  the  time.  I  am  sure  it  was  after  the  1st 
of  January,  and  before  the  1st  of  February 
It  was  immediately  after  the  recess  of  Con 
gress.  The  room  that  was  occupied  by  Booth 
at  the  National  Hotel  had  been  previously 
occupied,  so  Booth  said,  by  a  member  of 
Congress.  Booth,  I  remember,  walked  round 
the  room,  put  his  hand  on  the  shelf,  and 
took  down  some  Congressional  documents, 
and  remarked,  a  What  a  good  read  I  shall 
have  when  I  am  left  to  myself."  It  was  the 
first  day  of  Booth's  arrival  in  the  city,  and 
of  his  taking  possession  of  the  room,  I  un 
derstood.  Most  of  the  Congressmen  had 
returned;  Congress  was  in  session  at  the  time. 

When  Booth  and  Dr.  Mudd  met  Surratt 
and  myself,  on  Seventh  Street,  Surratt  first 
introduced  Dr.  Mudd  to  me.  and  then  Dr. 
Mudd  introduced  Booth  to  both  of  us. 
Booth  then  invited  us  down  to  his  room  at 
the  National  Hotel.  As  we  walked  down 
Seventh  Street,  Mr.  Surratt  took  Dr.  Mudd's 
arm,  and  I  walked  with  Booth.  The  conver 
sation  at  the  National  lasted,  I  suppose, 
three-quarters  of  an  hour.  When  Booth  took 
the  envelope  out  of  his  pocket,  and  with  a 
pencil  drdw  lines,  as  it  were,  on  the  back  of 
this  envelope,  Mr.  Surratt  and  Dr.  Mudd 
were  looking  on.  All  the  while  he  was  doing 
it  they  were  engaged  in  deep  private  conver 
sation,  which  was  scarcely  audible.  I  was 
sitting  about  eight  feet  from  them  and  could 
hear  nothing  of  it.  When  Booth  went  out 
of  the  room  with  Dr.  Mudd,  they  remained 
not  more  than  five  or  eight  minutes.  They 
went  into  a  dark  passage,  and  I  judge  they 
remained  there,  as  I  heard  no  retreating  foot 
steps,  and  they  did  not  take  their  hats. 

Almost  immediately  after  their  return 
Surratt  went  out,  and  all  three  staid  out  about 
the  same  length  of  time  as  at  the  first  inter 
view. 


After  their  return  to  the  room,  we  \ 
mained  probably  twenty  minutes;  then  le\* 
the  National  Hotel  and  went  to  the  Penn 
sylvania  House,  where  Dr.  Mudd  had  rooms. 
We  all  went  into  the  sitting-room,  arid  Dr. 
Mudd  came  and  sat  down  by  me;  and  we 
talked  about  the  war.  He  expressed  the 
opinion  that  the  war  would  soon  corne  to  an 
end,  and  spoke  like  a  Union  man.  Booth 
was  speaking  to  Surratt.  At  about  half-past 
10,  Booth  bade  us  good  night,  and  went  out; 
Surratt  and  I  then  bade  Dr.  Mudd  good  night. 
He  said  he  was  going  to  leave  next  morning. 

I  had  never  seen  Dr.  Mudd  before  that 
day.  I  had  heard  the  name  of  Mudd  men 
tioned  in  Mrs.  Surratt's  house,  but  whether 
it  was  this  Dr.  Samuel  Mudd  I  can  not  say. 
I  have  heard  of  Dr.  George  Mudd  and  Dr. 
Samuel  Mudd. 

By  MR.  STONE. 

I  first  saw  Herold  in  the  summer  of  1863, 
at  Surrattsville,  at  a  serenade  there.  A  band 
had  gone  down  from  the  city  to  serenade  the 
officers  who  had  been  elected,  and  the  band 
stopped  at  Mrs.  Surratt's,  on  the  way  down, 
and  serenaded  us;  on  returning  in  the  morn 
ing,  they  stopped  and  serenaded  us  again. 
Herold  was  with  this  party,  and  it  was  'on 
this  occasion  that  John  Surratt  introduced 
lira  to  me. 

By  MR.  CLAMPITT. 

There  was  nothing  in  the  conversation  be- 
;ween  Dr.  Mudd,  Booth,  and  Surrratt,  at  the 
National  Hotel,  that  led  me  to  believe  there 
*vas  any  thing  like  a  conspiracy  going  on 
)etween  them. 

When  Mrs.  Surratt  sent  me  to  Booth,  and 

le  offered   me  the  ten  dollars,  I  thought  at 

he  time  that  it  was  nothing  more  than  an  act 

of  friendship.     I  said  to  Booth,  "I  am  come 

wirti  an  order  for  that  buggy  that  Mrs.  Surratt 

*sked   you    for   last  evening."     He  said,  "I 

lave  sold  my  buggy,  but  here  are  ten  dollars, 

nd  you  go  and  hire  one."     I  never  told  Mrs. 

Surratt  that. 

Mrs.  Surratt  would  sometimes  leave  the 
parlor  on  being  asked  by  Booth  to  spare  him 
i  word.  She  would  then  go  into  the  passage 
ind  talk  with  him.  These  conversations 
vould  not,  generally,  occupy  more  than  five 
r  eight  minutes. 

By  MR.  AIKEN. 

On  the  14th  of  April,  when  I  drove  Mrs. 
5urratt  to  Surrattsville,  I  wrote  a  letter  for 
ler  to  this  man  Nothe;  it  was,  I  remember, 

Mr.  Nothe:  Sir — Unless  you  come  forward 
nd  pay  that  bill  at  once,  I  will  bring  suit 
.gainst  you  immediately."  I  also  remember 
umming  up  the  interest  for  her  on  the  sum 
f  $479  for  thirteen  years. 

By  MR.  DOSTER. 

Atzerodt  has  been  frequently  to  Mrs.  Sur- 
att's  house,  and  had  interviews  with  John 


118 


THE    CONSPIRACY   TRIAL. 


H.  Surratt  in  the  parlor.  I  knew  nothing  of 
what  took  place  between  them.  On  the 
occasion  of  Payne's  last  visit  to  the  house. 
Atzerodt  came  to  see  Surratt,  and  I  saw 
Payne  and  Atzerodt  together,  talking  in  my 
room.  I  do  not  know  of  any  conversation 
that  passed  between  Atzerodt  and  Booth,  or 
Atzerodt  and  Payne,  having  reference  to  a 
conspiracy. 

Surratt  was  continually  speaking  about 
cotton  speculations,  and  of  going  to  Europe, 
and  I  heard  Atzerodt  once  remark  that  he 
also  was  going  to  Europe,  but  he  was  going 
on  horseback ;  from  that  remark  I  concluded 
he  was  going  South. 

At  half-past  2  o'clock,  on  the  afternoon  of 
the  14th,  I  saw  Atzerodt  at  the  livery-stable, 
trying  to  get  a  horse.  The  stable-keeper,  in 
my  presence,  refused  to  let  him  have  one.  I 
asked  Atzerodt  where  he  was  going,  and  he 
said  he  was  going  to  ride  in  the  country,  and 
he  said  he  was  going  to  get  a  horse  and  send 
for  Payne.  I  met  Atzerodt  one  day  on 
Seventh  Street,  and  asked  him  where  he  was 
going.  He  said  he  was  going  to  see  Payne. 
I  asked  him  if  it  was  Payne  who  was  at  the 
Herndon  House.  He  said,  "Yes."  When 
Payne  visited  the  Surratts,  his  business  ap 
peared  to  be  with  Mr.  Surratt.  On  the 
occasion  of  his  first  visit,  I  was  in  the  parlor 
during  the  whole  time.  I  did  not  notice  any 
other  disguise  than  the  false  moustache 
spoken  of,  nor  any  thing  else  to  show  that 
Payne  wanted  to  disguise  himself.  He  ap 
peared  to  be  kindly  treated  by  Mr.  Surratt,  as 
if  he  was  an  old  acquaintance. 

I  do  not  know  whether  the  Surratt  family 
regarded  him  as  a  man  in  disguise  or  as  a 
Baptist  minister.  One  of  the  young  ladies 
looked  at  him,  arid  remarked  that  he  was  a 
queer-looking  Baptist  preacher,  and  that  he 
would  not  convert  many  souls. 

Recalled  for  the  Prosecution. — May  18. 
[A  telegraphic  dispatch  was  handed  to  the  witness.] 

I  received  this  dispatch  and  delivered  it  to 
John  H.  Surratt  on  the  same  day.  I  can  not 
say  that  I  received  it  on  the  23d  of  March, 
but  it  was  after  the  17th  of  March. 

NEW  YORK,  March  23,  1865. 
To  Weichmann,  Esq.,  541  H  Street: 

Tell  John  to  telegraph  number  and  street 
at  once.  [Signed]  J.  BOOTH. 

[The  original  of  the  above  dispatch  was  offered  in  evi 
dence:] 

This  is  in  Booth's  handwriting.  I  have 
seen  Booth's  handwriting,  and  recognize  his 
autograph.  When  I  delivered  the  message 
to  John  Surratt,  I  asked  him  what  particular 
number  and  street  was  meant,  and  he  said, 
''  Do  n't  be  so  damned  inquisitive." 

During  Payne's  second  visit  to  Mrs.  Sur- 
ratt's  house,  some  time  after  the  4th  of  March, 
I  returned  from  my  office  one  day  at  half-past 
4  o'clock.  I  went  to  my  room,  and  ringing 
the  bell  for  Dan,  the  negro  servant,  told  him 


to  bring  me  some  water,  and  inquired  at  the 
same  time  where  John  had  gone.  He  told  me 
Massa  John  had  left  the  front  of  the  house, 
with  six  others,  on  horseback,  about  half- 
past  2  o'clock.  On  going  down  to  dinner,  I 
found  Mrs.  Surratt  in  the  passage.  She  was 
weeping  bitterly,  and  I  endeavored  to  cortsole 
her.  She  said,  "John  is  gone  away;  go  down 
to  dinner,  and  make  the  best  of  your  dinner 
I  you  can."  After  dinner,  I  went  to  my  room, 
sat  down,  commenced  reading,  and  about  half- 
past  6  o'clock  Surratt  came  in  very  much  ex- 
ci|ed — in  fact,  rushed  into  the  room.  He  had 
a  revolver  in  his  hand — one  of  Sharpe's  re 
volvers,  a  four-barrelled  revolver,  a  small  one, 
you  could  carry  it  in  your  vest-pocket.  He 
appeared  to  be  very  much  excited.  I  said, 
"John,  what  is  the  matter;  why  are  you  so 
much  excited?"  He  replied,  "1  will  shoot 
any  one  that  comes  into  this  room;  my  pros 
pect  is  gone,  my  hopes  are  blighted;  I  want 
something  to  do;  can  you  get  me  a  clerk 
ship?"  In  about  ten  minutes  after,  the  pris 
oner,  Payne,  came  into  the  room.  He  was  also 
very  much  excited,  arid  1  noticed  he  had  a 
pistol.  About  fifteen  minutes  afterward,  Booth 
came  into  the  room,  and  Booth  was  so  excited 
that  he  walked  around  the  room  three  or  four 
times  very  frantically,  and  did  not  notice  me. 
He  had  a  whip  in  his  hand.  I  spoke  to  him, 
and,  recognizing  me,  he  said,  "  1  did  not  see 
you."  The  three  then  went  up  stairs  into  the 
back  room,  in  the  third  story,  and  must  have 
remained  there  about  thirty  minutes,  when 
they  left  the  house  together.  On  Surratt1  s  re 
turning  home,  I  asked  him  where  he  had  left 
his  friend  Payne.  He  said,  "  Payne  had  gone 
to  Baltimore."  I  asked  him  where  Booth 
had  gone;  he  said  Booth  had  gone  to  New 
York.  Some  two  weeks  after,  Surratt,  when 
passing  the  post-office,  inquired  for  a  letter 
that  was  sent  to  him  under  the  name  of  James 
Sturdey.  I  asked  him  why  a  letter  was  sent 
to  him  under  a  false  name;  he  said  he  had 
particular  reasons  for  it. 

The  letter  was  signed  "Wood,"  and  the 
substance  of  it  was,  that  the  writer  was  at  the 
Revere  House  in  New  York,  arid  was  looking 
for  something  to  do;  that  he  would  probably 
go  to  some  boarding-house  on  West  Grand 
Street,  I  think.  This  must  have  been  before 
the  20th  of  March. 

When  I  asked  the  negro  servant  to  tell  me 
who  the  seven  men  were  that  had  gone  out 
riding  that  afternoon,  he  said  one  was  Massa 
John,  and  Booth,  and  Port  Tobacco,  and  that 
man  who  was  stopping  at  the  house,  whom  I 
recognized  as  Payne.  Though  they  were  very 
much  excited  when  they  came  into  the  room, 
they  were  very  guarded  indeed.  Payr.e  made 
no  remark  at  all.  Those  excited  remarks  by 
Surratt  were  the  only  ones  made. 

Cross-examined  by  MR.  AIKEN. 

I  did  not  hear  the  conversation  that  took 
place  between  Mrs.  Surratt  and  Mr.  Lloyd  at 
Uniontown.  Mrs.  Surratt  leaned  sideways 


TESTIMONY    CONCERNING   MRS.  MARY   E.  SURRATT. 


119 


in  the  buggy,  and  whispered,  as  it  were,  in  Mr. 
Lloyd's  ear. 

I  have  seen  Mrs.  Slater  at  Mrs.  Surratt's 
house  only  once,  though  I  understand  she  has 
been  there  twice.  Mrs.  Surratt  told  me  that 
she  came  to  the  house  with  Mr.  Ho  well;  that 
she  was  a  North  Carolinian;  I  believe  that 
she  spoke  French,  and  that  she  was  a  block- 
ade-runneror  bearer  of  dispatches.  Mrs.  Sur 
ratt  said  it'  she  got  into  trouble  there  was  no 
danger,  because  she  could  immediately  apply 
to  the  French  Consul,  speaking  French  as  she 
did.  At  the  time  I  saw  her,  she  drove  up  to 
the  door  in  a  buggy;  there  was  a  young  man 
with  her.  Mrs.  Surratt  told  me  to  go  out 
and  take  her  trunk.  She  wore  a  crape  mask 
vail.  That  was  some  time  in  the  month  of 
February.  When  Howell  was  at  Mrs.  Sur 
ratt's,  he  gave  the  name  of  Spencer.  They 
refused  to  tell  me  his  right  name,  but  I  after 
ward  learned  from  John  Surratt  that  his  name 
was  Augustus  Howell.  His  nickname  in  the 
house  was  Spencer.  He  was  well  acquainted 
with  Mrs.  Surratt.  I  was  introduced  to  him, 
and  had  some  conversation  with  him.  1  told 
him  I  would  like  to  be  South.  I  had  been  a 
student  of  divinity,  and  I  was  studying  for 
the  diocese  of  Richmond.  I  told  him  that  I 
would  like  to  be  in  Richmond  for  the  pur 
pose  of  continuing  my  theological  studies. 

By  MR.  CLAMPITT. 

Q.  Why  had  you  a  greater  desire  to  continue 
your  studies  in  Richmond  than  the  North  ? 

Assistant  Judge  Advocate  BINGHAM.  I  ob 
ject  to  that  question.  It  is  wholly  immaterial 
what  reason  he  had. 

Mr.  CLAMPITT.  It  is  important,  and  concerns 
the  res  gestce  of  the  case. 

Assistant  Judge  Advocate  BINGHAM.  Sup 
posing  he  should  give  an  answer,  how  would 
you  dispose  of  it? 

Mr.  CLAMPITT.  By  further  testimony  that 
we  may  adduce  hereafter.  It  may  be  a  con 
necting  link. 

Assistant  Judge  Advocate  BINGHAM.  You 
can  not  do  it  in  that  way.  If  you  had  asked 
him  for  his  declarations,  I  could  understand 
it;  but  this  is  an  attempt  to  get  at  the  in- 
terior  motive  of  the  witness,  which  you  can 
not  do,  unless  you  can  obtain  the  power  of 
omnipotence. 

The  question  was  waived. 

WITNESS.  I  spoke  about  Mr.  Howell  to 
Captain  Gleason,  a  clerk  in  our  office,  and 
said  to  him,  "There  is  a  blockade-runner  at 
Mrs.  Surratt's;  shall  I  have  him  delivered 
up?"  I  agitated  the  question  with  myself  for 
three  days,  and  decided  in  favor  of  Surratt; 
I  thought  it  would  be  perhaps  the  only  time 
the  man  would  be  there,  and  that  I  would  let 
him  go,  in  God's  name. 

By  MR.  AIKEN. 

While  I  was  a  clerk  in  the  War  Depart 
ment,  this  man  Howell  taught  me  a  cipher 
alphabet,  and  how  to  use  it.  He  said  nothing 


[about  its  being  a  cipher  used  at  Richmond, 
I  nor  did  he  give  it  to  me  with  any  idea  of 
corresponding  in  it;  and  the  only  use  I  ever 
made  of  it  was  to  write  out  a  poem  of  Long 
fellow's  in  it,  which  I  showed  to  Mr.  Cruik- 
shank,  a  clerk  in  the  War  Department.  He 
was  in  the  habit  of  making  puns  and  enig 
mas  himself;  and  I  told  him  I  would  give 
him  an  enigma  which  he  could  not  make  out. 
The  cipher  alphabet  was  in  my  box,  and  no 
doubt  was  found  among  my  things  when  they 
were  seized. 

I  read  in  the  paper,  the  morning  after  the 
assassination,  the  description  of  the  assassin 
of  Secretary  Seward ;  he  was  described  as  a 
man  who  wore  a  long  gray  coat,  and  I  went 
to  the  stable  on  G  Street  and  told  Brook 
Stabler  that  I  thought  it  was  Atzerodt.  I 
afterward  met  Mr.  Holahan,  and  he  also 
communicated  similar  suspicions  to  me,  and 
after  breakfast  we  gave  ourselves  up  to. Su 
perintendent  Richards,  of  the  Metropolitan 
Police  force.  I  told  Officer  McDevitt  about 
Payne,  and  where  he  was  stopping,  an'd  what 
I  knew  of  Surratt,  Atzerodt,  and  Herold.  No 
threats  were  made  in  case  I  did  not  divulge 
what  I  knew,  and  no  offers  or  inducements 
if  I  did.  My  only  object  was  to  assist  the 
Government.  I  surrendered  myself  because 
I  thought  it  was  my  duty.  It  was  hard  for 
me  to  do  so,  situated  as  I  was  with  Mrs. 
Surratt  and  her  family,  but  it  was  my  duty, 
and  so  I  have  always  regarded  it  since. 

I  can  not  say  that  any  objection  was  ever 
made  by  any  of  the  prisoners  at  the  bar  to 
my  being  present  at  any  of  their  conversa 
tions,  but  they  would  withdraw  themselves. 
When  Booth  would  call,  he  would  converse 
perhaps  five  or  ten  minutes,  and  then  I  no 
ticed  that  John  would  tap  or  nudge  Booth, 
or  Booth  would  nudge  Surratt;  then  they 
would  go  out  of  the  parlor  and  stay  up  stairs 
for  two  or  three  hours.  I  never  had  a  word 
of  private  conversation  with  them  which  I 
would  not  be  willing  to  let  the  world  hear. 
Their  conversations,  in  my  presence,  were  on 
general  topics.  I  never  learned  any  thing 
from  the  conversations  of  any  of  the  prison 
ers  at  the  bar  of  any  intended  treason  or 
conspiracy.  I  would  have  been  the  last  man 
in  the  world  to  suspect  John  Surratt,  my 
school-mate,  of  the  murder  of  the  President 
of  the  United  States.  My  suspicions  were 
aroused  by  Payne  and  Booth  coming  to  the 
house,  and  their  frequent  private  conversa 
tions  with  John  Surratt,  and  by  seeing  Payne 
and  Surratt  playing  on  the  bed  with  bowie- 
knives,  and  again  by  finding  a  false  mous 
tache  in  my  room;  but  my  suspicions  were 
not  of  a  fixed  or  definite  character.  I  did 
not  know  what  they  intended  to  do.  I  made 
a  confidant  of  Captain  Gleason  in  the  War 
Department.  I  told  him  that  Booth  was  a 
secesh  sympathizer,  and  mentioned  snatches 
of  conversation  I  had  heard  from  these  par 
ties;  and  I  asked  him,  ''Captain,  what  do 
you  think  of  all  this?"  We  even  talked 


120 


THE    CONSPIRACY   TRIAL. 


over  several  things  which  they  could  do.  I 
asked  him  whether  they  could  be  bearers  of 
dispatches  or  blockade-runners.  I  remember 
seeing  in  the  New  York  Tribune,  of  March 
19th,  the  capture  of  President  Lincoln  fully 
discussed,  and  I  remarked  to  Captain  Glea- 
son,  "  Captain,  do  you  think  any  party  could 
attempt  the  capture  of  President  Lincoln  ?" 
He  laughed  and  hooted  at  the  idea.  This 
happened  before  the  horseback  ride  of  Sur- 
ratt  and  the  six  others.  I  remarked  to  the 
Captain,  the  morning  after  they  rode,  that 
Surratt  had  come  back,  and  I  mentioned  to 
Gleason  the  very  expressions  Surratt  had 
used,  and  told  him  that,  to  all  appearances, 
what  they  had  been  after  had  been  a  failure ; 
and  that  I  was  glad,  as  I  thought  Surratt 
would  be  brought  to  a  sense  of  his  duty. 

Q.  How  came  you  to  connect  the  discus 
sion  which  you  read  in  the  papers  with  any 
of  these  parties,  and  have  your  suspicions 
aroused  against  them  ? 

Assistant  Judge  Advocate  BINGHAM.  I 
object  to  the  question.  It  is  no  matter  how 
the  man's  mental  processes  worked.  We  can 
not  inquire  into  that. 

Mr.  AIKEN.  It  will  be  recollected  that 
yesterday  a  witness  was  asked  what  his  im 
pressions  were,  and  it  was  not  objected  to. 

Assistant  Judge  Advocate  BINGHAM.  The 
question  is  now,  how  he  came  to  form  cer 
tain  conclusions.  We  can  not  try  a  question 
of  that  sort.  No  court  on  earth  could  do  it. 
It  is  a  thing  we  can  not  understand,  nor  any 
body  else ;  and  perhaps  the  witness  himself 
would  not  now  be  able  to  state  what  con 
trolled  his  mental  operations  at  that  time. 

Mr.  AIKEN.     I  insist  on  my  question. 

Assistant  Judge  Advocate  BINGHAM.  The 
witness  has  already  gone  on  and  told  all  he 
can  tell,  and  given  declarations;  and  now  he 
is  asked  to  state  how  he  came  to  connect 
them  with  the  newspaper  article.  Of  what 
use  is  that  to  anybody  ?  I  object  to  it  as  a 
wholly  immaterial  and  irrelevant  question. 
No  matter  how  the  witness  answers,  it  can 
throw  no  light  on  the  subject,  in  favor  of  or 
against  the  prisoners. 

Mr.  AIKEN.  But  the  Judge  Advocate  is 
aware  that  the  witness  did  not  tell  all  he 
wished  to  know  in  the  examination  in  chief, 
and  in  his  re-examination  went  into  matter 
not  brought  out  in  the  examination  in  chief, 
or  in  the  cross-examination,  which  also  was 
not  objected  to  by  us. 

The  Court  sustained  the  objection. 

WITNESS.  I  had  been  a  companion  of 
John  H.  Surratt's  for  seven  years.  I  did 
not  consider  that  I  forfeited  my  friendship 
to  him  in  mentioning  my  suspicions  to  Mr. 
Gleason  ;  he  forfeited  his  friendship  to  me 
by  placing  me  in  the  position  in  which  I 
now  stand,  testifying  against  him.  I  think 
I  was  more  of  a  friend  to  him  than  he  was 
to  me.  He  knew  that  I  permitted  a  block 
ade-runner  at  the  house,  without  informing 
upon  him,  because  I  was  his  friend.  But  1 


hesitated  about  it  for  three  days  ;  still,  when 
my  suspicions  of  danger  to  the  Government 
were  aroused,  I  preferred  the  Government  to 
John  Surratt. 

By  MR.  EWING. 

The  ride  of  the  parties  spoken  of,  I  think, 
took  place  after  my  reading  the  article  in  the 
Tribune  of  March  19th.  I  also  saw  in  the 
Republican,  some  time  in  February,  that  the 
assassination  of  President  Lincoln  was  con 
templated,  and  Surratt  once  made  the  re 
mark  to  me  that  if  he  succeeded  in  his  cot 
ton  speculation,  his  country  would  love  him 
forever,  and  that  his  name  would  go  down 
green  to  posterity. 

1  do  not  know  what  were  his  intentions, 
but  he  said  he  was  going  to  engage  in  cot 
ton  speculations;  he  was  going  to  engage  in  oil. 

My  remark  to  Captain  Gleason  about  the 
possibility  of  the  capture  of  the  President 
was  merely  a  casual  remark.  He  laughed 
at  the  idea  of  such  a  thing  in  a  city  guarded 
as  Washington  was.  It  was  the  morning 
after  the  ride  that  I  stated  to  Captain  Glea- 
eon  that  Surratt's  mysterious  and  incompre 
hensible  business  had  failed;  and  I  said, 
"Captain,  let  us  think  it  over,  and  let  us 
think  of  something  that  it  could  have  been." 
I  mentioned  a  variety  of  things — blockade- 
running,  bearing  dispatches;  and  we  then 
thought  of  breaking  open  the  Old  Capitol 
Prison ;  but  all  those  ideas  vanished  ;  we  hit 
upon  nothing.  I  will  state  that  since  that 
ride  my  suspicions  were  not  so  much  aroused 
as  before,  because  Payne  has  not  been  to  the 
house  since;  and  Atzerodt,  to  my  knowledge, 
had  not  been  to  the  house  since  the  2d  of 
April.  The  only  one  that  visited  the  house 
during  that  time  was  this  man  Booth. 

Recalled  for  the  Prosecution. — May  19. 

[The  accused,  Lewis  Payne,  was  here  attired  in  tho  coat 
and  vest  iu  which  he  was  arrested  at  the  house  of  Mrs. 
Surratt.] 

Payne  wore  that  coat  and  vest  the  last 
time  he  came  to  Mrs.  Surratt's,  when  he  staid 
three  days,  on  the  14th,  15th  and  16th  of 
March,  and  it  was  on  the  16th  that  the  party 
took  that  horseback  ride.  The  next  day 
after  that  I  mentioned  my  suspicions  to  Cap 
tain  Gleason.  I  had  spoken  to  him  previously, 
on  various  occasions,  about  this  blockade- 
runner,  and  about  Mrs.  Slater,  but  I  can  riot 
fix  the  precise  date.  I  am  enabled  to  fix  the 
date  of  Payne's  last  visit  to  the  house,  from 
the  fact  that  he  went  with  John  Surratt,  Miss 
Fitzpatrick,  and  Miss  Dean  to  see  "Jane 
Shore  "  played  at  the  theater.  Forrest  was 
playing  there  at  that  time,  and  Surratt  had 
got  a  ten-dollar  ticket.  It  was  the  next  day 
that  this  horseback  ride  occurred. 

A.  R.  REEVES. 
For  the  Prosecution. — May  18. 

I  reside  in  Brooklyn,  N.  Y.  I  am  a  tele 
graphic  operator. 


TESTIMONY   CONCERNING   MRS.    MARY    E.    SURRATT. 


121 


[A  telegraphic  dispatch  was  handed  to  the  witness.] 

This  is  the  original  dispatch  that  was 
handed  to  me  by  John  Wilkes  Booth,  at  the 
St.  Nicholas  Hotel,  New  York,  to  be  sent  to 
Washington.  It  reads: 

NEW  YORK,  March  23,  1865. 
To  Wdchmann,  Esq.,  541  H  Street : 

Tell  John  to  telegraph  number  and  street 
at  once.  [Signed]  J.  BOOTH. 

It   was    sent    on    the    23d.      I    remember 

Booth's  signing  "  J.  Booth,"  instead  of  John 

"Wilkes  Booth,  knowing  that  to  be  his  name; 

I  noticed  at  the  time  that  Wilkes  was  left  out 

[A  photograph  of  Booth  was  exhibited  to  the  witness. 

This  is  the  gentleman  who  handed  the  dis 
patch  to  me. 

MlSS  HONORA  FlTZPATRICK. 

For  the  Prosecution. — May  22. 

1  resided  at  the  house  of  Mrs.  Mary  E. 
Surratt,  the  prisoner  at  the  bar,  last  winter. 
During  the  month  of  March  last,  I  saw  John 
Wilkes  Booth  and  John  H.  Surratt  there, 
and  of  the  prisoners,  Mr.  Wood,  [pointing  to 
the  prisoner,  Lewis  Payne,]  I  do  not  know 
him  by  any  other  name,  and  Mr.  Atzerodt 
[pointing  to  the  accused,  George  A.  Atzerodt.] 
I  never  saw  David  E.  Herold  there.  I  only 
saw  Mr.  Wood  at  Mrs.  Surratt's  twice;  once 
was  in  March.  Atzerodt  was  there  but  a 
p.hort  time;  he  staid  over  night  once. 

Some  time  in  March,  in  company  with  Mr. 
Surratt,  Wood,  [Payne,]  and  Miss  Dean,  I 
went  to  Ford's  Theater.  I  do  not  know  what 
box  we  occupied,  but  think  it  was  an  upper 
box.  John  Wilkes  Booth  came  into  the  box 
while  we  were  there.  The  day  after  this  visit 
to  the  theater  I  went  to  Baltimore,  and  was 
absent  for  about  a  week. 

MRS.  EMMA  OFFUTT: 
For  the  Prosecution. — May  17. 

On  Tuesday,  the  llth  of  April,  I  was  in 
the  carriage  with  Mr.  Lloyd,  my  brother-in- 
law.  When  somewhere  about  Uniontovvn 
we  met  Mrs.  Surratt.  Our  carriage  passed 
before  we  recognized  that  it  was  her,  when 
Mr.  Lloyd  got  out.  Whether  Mrs.  Surratt 
called  him  J  do  not  know.  I  did  not  hear 
their  conversation,  for  I  was  some  distance 
off. 

On  Friday,  the  14th,  I  saw  Mrs.  Surratt  at 
Mr.  Lloyd's  house.  She  came  into  the  par 
lor.  Mr.  Lloyd  had  been  to  Marlboro  that 
day,  attending  court;  he  had  just  returned, 
and  had  brought  some  oysters  and  fresh  fish 
with  him,  and  had  driven  round  to  the  back 
part  of  the  yard.  Having  occasion  to  go 
^ through  to  the  back  part  of  the  house,  she 
'came  with  me,  and  I  saw  her  and  Mr.  Lloyd 
conversing  together  in  the  back  yard.  I  paid 
no  attention  at  all  to  them,  and  could  not 
tell  a  word  that  passed  between  them. 


Cross-examined  by  MR.  AIKEK. 

When  the  two  carriages  passed  at  Union- 
town,  and  Lloyd  got  out,  it  was  misty  an -I 
raining  a  little.  The  carriages  were  two  or 
three  yards  apart,  I  suppose.  I  never  looked 
out  of  the  carriage  at  all  after  Mr.  Lloyd  left 
it,  and  Lloyd  said  nothing  to  me  about  his 
conversation  with  Mrs.  Surratt. 

Mrs.  Surratt  arrived  at  Mr.  Lloyd's  about 
4  o'clock  on  the  afternoon  of  the  14th.  I 
had  a  conversation  with  her  before  Mr.  Lloyd 
came  in. 

Q.  Did  you  learn-any  thing  of  her  business 
there  that  day  ? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  Statements  of  Mrs. 
Surratt,  in  the  absence  of  Mr.  Lloyd,  were 
not  admissible. 

WITNESS.  Mrs.  Surratt  gave  me  no  charge 
in  reference  to  her  business,  only  concerning 
her  farm,  and  she  gave  me  no  packages. 

Q.  During  your  visit  to  Mr.  Lloyd's,  did  you 
ever  hear  any  conversation  there  with  refer 
ence  to  "  shooting-irons?" 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  The  witness  had 
already  stated  that  she  did  not  hear  the  con 
versation  between  Mr.  Lloyd  and  Mrs.  Sur 
ratt. 

Mr.  Aiken  claimed  the  right  to  ask  the 
question,  in  order  to  impeach  the  credibility 
of  the  previous  witness,  Lloyd. 

The  Commission  sustained  the  objection. 

MAJOR  H.  W.  SMITH. 
For  the  Prosecution. — May  19. 

I  was  in  charge  of  the  party  that  took 
possession  of  Mrs.  Surratt's  house,  541  H 
Street,  on  the  night  of  the  17th  of  April,  and 
arrested  Mrs.  Surratt,  Miss  Surratt,  Miss 
Fitzpatrick,  and  Miss  .Jenkins.  When  I 
went  up  the  steps,  and  rang  the  bell  of  the 
bouse,  Mrs.  Surratt  came  to  the  window,  and 
said,  "Is  that  you,  Mr.  Kirby?"  The  reply 
was  that  it  was  not  Mr.  Xirby,  and  to  open 
[lie  door.  She  opened  the  door,  and  I  asked, 
'Are  you  Mrs.  Surratt?"  She  said,  "I  am 
the  widow  of  John  II.  Surratt,"  And  I 
added,  "The  mother  of  John  II.  Surratt, 
jr.? "  She  replied,  "I  am."  I  then  said, 
'  I  come  to  arrest  you  and  all  in  your  house, 
and  take  you  for  examination  to  General 
Augur's  head-quarters."  No  inquiry  what 
ever  was  made  as  to  the  cause  of  the  arrest 
While  we  were  there,  Payne  came  to  the 
louse.  I  questioned  him  in  regard  to  his 
occupation,  and  what  business  he  had  at  the 
louse  that  time  of  night.  He  stated  that  he 
vas  a  laborer,  and  had  come  there  to  dig  a 
gutter  at  the  request  of  Mrs.  Surratt.  I  went 
'o  the  parlor  door,  and  said,  "Mrs.  Surratt, 
vill  you  step  here  a  minute?"  She  came 
ut,  and  I  asked  her,  "Do  you  know  this 
man,  and  did  you  hire  him  to  come  and  dig 
a  gutter  for  you?"  She  answered,  raising 


122 


THE    CONSPIRACY    TRIAL. 


her  right  hand,  "  Before  God,  sir,  I  do  not 
know  this  man,  and  have  never  seen  him, 
and  I  did  not  hire  him  to  dig  a  gutter  for 
me."  Payne  said  nothing.  I  then  placed 
him  under  arrest,  and  told  him  lie  was  so 
suspicious  a  character  that  I  should  send  him 
to  Colonel  Wells,  at  General  Augur's  head 
quarters,  for  further  examination.  Payne 
was  standing  in  full  view  of  Mrs.  Surratt, 
and  within  three  paces  of  her,  when  she  de 
nied  knowing  him. 

Cross-examined  by  MR.  AIKEN. 

A  variety  of  photographs  were  found  in  a 
photograph-album  and  in  various  parts  of 
Mrs.  Surratt' s  house. 

Payne  was  dressed  that  night  in  a  gray 
coat,  black  pantaloons,  and  rather  a  fine  pair 
of  boots.  He  had  on  his  head  a  gray  shirt 
sleeve,  hanging  over  at  the  side.  His  panta 
loons  were  rolled  up  over  the  tops  of  his 
boots;  on  one  leg  only,  I  believe. 

I  have  known  some  loyal  people  who  have 
had  in  their  possession  photographs  of  the 
leaders  of  the  rebellion.  I  can  not  say  that 
I  have  seen  on  exhibition  at  bookstores,  or 
advertised  by  newspaper  dealers  and  keepers 
of  photographs,  cartes-de-visite  of  the  leaders 
of  the  rebellion.  I  have  seen  photographs  of 
Booth,  but  only  since  this  trial. 

Re-examined  l>y  the  JUDGE  ADVOCATE. 

Payne  was  dressed  at  the  time  in  a  gray 
coat  and  black  pantaloons. 

[Exhibiting  to  the  witness  a  brown  and  white  mixed 
coat.] 

That  is  the  coat  Payne  wore,  to  the  best  of 
my  belief. 

Ky  MR.  DOSTER. 

I  am  certain  that  this  is  the  coat;  I  re 
member  it  by  its  color  and  general  look.  As 
near  as  I  could  judge  by  the  light  that  was 
in  the  hall  at  the  time,  that  was  the  coat. 

[Submitting  to  the  witness  a  dark -gray  coat.] 

The  coat  now  shown  me  is  the  one  worn 
by  Payne  on  the  night  of  his  arrest.  I  rec 
ognize  it  by  the  buttons.  All  that  was 
wanting  in  the  other  coat  was  the  buttons, 
but  it  was  difficult  in  the  light  in  which  I  was 
standing  to  tell.  The  coat  just  shown  me  is 
the  one. 

l.The  gray  coat  was  offered  in  evidence.] 

By  MR.  AIKEN. 

I  think,  if  I  saw  a  gentleman  dressed  in 
black,  with  a  white  neck-cloth,  representing 
himself  as  a  Baptist  preacher,  and  two  months 
afterward  1  met  the  same  person,  with  a  shirt 
sleeve  on  his  head,  an  old  gray  coat,  his 
pantaloons  stuffed  into  his  boots,  with  a 
pickaxe  on  his  shoulder,  presenting  him 
self  as  a  laborer,  and  in  the  night-time,  I 
think  that,  were  I  very  familiar  with  his 
countenance,  I  should  recognize  him  as  the 
same  person. 


R.  C.  MORGAN. 
For  the  Prosecution. — May  19. 

On  the  night  of  the  17th  of  April,  1  was  in 
the  service  of  the  War  Department,  acting 
under  the  orders  of  Colonel  Olcott,  special 
commissioner  of  that  department.  About 
twenty  minutes  past  1 1  o'clock,  on  the  evening 
of  the  17th  of  April,  Colonel  Olcott  gave  me 
instructions  to  go  to  the  house  of  Mrs.  Sur 
ratt,  541  II  Street,  and  superintend  the  seizing 
of  papers,  and  the  arrest  of  the  inmates  of  the 
house.  I  arrived  there  about  half-past  11 
o'clock,  and  found  Major  Smith,  Captain  Wer- 
merskirch,  and  some  other  officers,  who  had 
been  there  about  ten  minutes.  The  inmates 
were  in  the  parlor,  about  ready  to  leave. 

1  had  sent  out  for  a  carriage  to  take  the 
women  arrested  in  the  house  to  head-quar 
ters,  when  i  heard  a  knock  and  a  ring  at  the 
door.  At  the  same  time  Captain  Wermers- 
kirch  and  myself  stepped  forward  and  opened 
the  door,  when  the  prisoner,  Payne,  [point 
ing  to  Lewis  Payne,]  came  in  with  a  pickaxe 
over  his  shoulder,  dressed  in  a  gray  coat, 
gray  vest,  black  pants,  and  a  hat  made  out 
of,  I  should  judge,  the  sleeve  of  a  shirt  or 
the  leg  of  a  drawer.  As  soon  as  he  came  in, 
1  immediately  shut  the  door.  Said  he,  ''  I 
guess  I  am  mistaken."  Said  I,  uWhom  do 
you  want  to  see?"  "Mrs.  Surratt,"  said  he. 
"  You  are  right ;  walk  in."  lie  took  a  seat,  and 
I  asked  him  what  he  came  there  at  this  time 
of  night  for.  He  said  he  came  to  dig  a  gut 
ter;  Mrs.  Surratt  had  sent  for  him.  1  asked 
him  when.  lie  said,  "In  the  morning."  I 
asked  him  where  he  last  worked.  He  said, 
"Sometimes  on  1  Street."  I  asked  him 
where  he  boarded.  He  said  he  had  no  board 
ing-house;  he  was  a  poor  man,  who  got  his 
living  with  the  pick.  I  put  my  hand  on  the 
pick-axe  while  talking  to  him.  Said  I,  ''  How 
much  do  you  make  a  day?"  "Sometimes 
nothing  at  all;  sometimes  a  dollar;  some 
times  a  dollar  and  a  half."  Said  1,  "Have 
you  any  money?"  "Not  a  cent,"  he  replied. 
I  asked  him  why  he  came  at  this  time  of  night 
to  go  to  work.  He  said  he  simply  calledto 
find  out  what  time  he  should  go  to  work  in 
the  morning.  I  asked  him  if  he  had  any 
previous  acquaintance  with  Mrs.  Surratt. 
He  said,  "No."  Then  I  asked  him  why  she 
selected  him.  He  said  she  knew  he  was 
working  around  the  neighborhood,  and  was 
a  poor  man,  and  came  to  him.  I  asked  him 
how  old  he  was.  He  said,  "About  twenty." 
I  asked  him  where  he  was  from.  He  said 
he  was  from  Fauquier  County,  Virginia. 
Previous  to  this  he  pulled  out  an  oath  of 
allegiance,  and  on  the  oath  of  allegiance  was, 
"Lewis  Payne,  Fauquier  County,  Virginia." 
I  asked  him  if  he  was  from  the  South.  He 
said  he  was.  I  asked  him  when  he  left 
there.  "Some  time  ago;  in  the  month  of* 
February,"  1  think  he  said.  I  asked  him 
what  he  left  for.  He  said  he  would  have  to 
go  in  the  army,  and  he  preferred  earning  his 


TESTIMONY   CONCERNING   MRS.  MARY   E.  SURRATT. 


123 


iving  by  the  pickaxe.  I  asked  him  if  he 
could  read.  He  said,  "No."  I  asked  him 
if  he  could  write.  He  said  he  could  manage 
to  write  his  name. 

I  then  told  him  he  would  have  to  go  up  to 
the  Provost  Marshal's  office  and  explain.  He 
moved  at  that,  but  did  not  answer.  The 
carriage  had  returned  then  that  had  taken 
oft'  the  women,  and  I  ordered  Thomas  Sam 
son  and  Mr.  Rosch  to  take  him  up  to  the 
Provost  Marshal's  office.  He  was  then  taken 
up  and  searched.  I  then  proceeded,  with 
Major  Smith  and  Captain  Wermerskirch,  to 
search  through  the  house  for  papers,  and  re 
mained  there  until  3  o'clock  in  the  morning. 

[A  pickaxe  was  here  exhibited  to  the  witness.] 

That  is  the  pickaxe  he  had  on  his  shoulder. 

[It  was  thon  offered  in  evidence.] 

When  Payne  knocked  at  the  door,  Mrs. 
Surratt  and  the  inmates  of  the  house  were 
all  in  the  parlor,  prepared  to  leave.  Mrs. 
iSurratt  had  been  directed  to  get  the  bonnets 
and  shawls  of  the  rest  of  the  persons  in  the 
house,  so  that,  they  could  not  communicate 
with  each  other 

The  next  morning  I  went  down  to  the  house 
and  found  cartes-de-visite  of  Jefferson  Davis, 
Beauregard,  arid  Alexander  II.  Stephens;  and 
Lieutenant  Dempsey,  the  officer  in  charge, 
showed  me  a  photograph  of  J.  Wilkes  Booth, 
that  he  had  found  behind  a  picture,  which 
he  turned  over  to  the  Provost  Marshal. 

[An  envelope  containing  two  photographs  of  General 
Beauregard,  one  of  Jefferson  Davis,  one  of- Alexander  H. 
Stephens,  and  acard  with  the  arms  of  the  State  of  Virginia 
and  two  Confederate  flags  emblazoned  thereon,  with  the 
inscription 

"  Thus  will  it  ever  be  with  tyrants, 
Virginia  the  Mighty, 
Sic  Semper  Tyrannis."] 

I  found  all  these  at  the  house  of  Mrs. 
Surratt. 

Cross-examined  by  Mr.  AIKEN. 

I  do  not  recollect  having  seen  photographs 
of  J.  Wilkes  Booth  at  book-stores  before  the 
assassination  of  the  President;  and  I  never 
had  photographs  of  Jefferson  Davis  and 
other  prominent  leaders  of  the  rebellion  in 
my  hand,  until  I  had  these,  found  at  Mrs. 
Surratt' s.  I  have  not  seen  people  with  photo 
graphs  of  these  men  since  the  rebellion, 
though  they  might  have  had  them  before. 

CAPTAIN  W.  M.  WERMEKSKIRCH. 
For  the  Prosecution. — May  19. 

On  the  night  of  the  17th  of  April  I  was 
at  the  house  of  Mrs.  Surratt,  in  this  city, 
and  was  present  when  the  prisoner,  Payne, 
came  in,  about  mH  night.  Major  Smith 
asked  Mrs.  Surratt  whether  she  knew  him, 
and  Mrs.  Surratt,  in  the  presence  of  Payne, 
held  up  one  or  both  her  hands,  and  said, 
''  Before  God,  I  have  never  seen  that  man 
before.  I  have  not  hired  him ;  I  do  not 
know  any  thing  about  him;"  or  words  to 
that  effect.  The  prisoner  at  the  bar  [pointing 


to  Lewis  Payne]  is  the  man  of  whom  I  speak, 
and  Mrs.  Surratt  [pointing  to  the  prisoner, 
Mary  E.  Surratt]  is  the  woman  of  whom  1 
speak. 

Cross-examined  by  MR.  AIKEN. 

1  made  a  search  of  Mrs  Surratt's  house, 
and  found  a  number  of  photographs,  papers, 
a  bullet-mold,  and  some  percussion-caps.  The 
bullet-mold  and  percussion-caps  were  found 
in  the  back  room  of  the  lower  floor,  which, 
I  believe,  was  Mrs.  Surratt's  room. 

I  found  cartes-de-visite,  lithographic  ones  I 
think,  but  got  up  in  the  same  shape  as  photo 
graphic  cartes-de-visite,  of  Jefferson  Davis, 
Alexander  H.Stephens  and  Beauregard.  I  also 
saw  a  photograph  of  General  McClellan  there. 

When  Mrs.  Surratt  made  the  asseveration 
with  regard  to  Payne,  I  was  standing  in  the 
hall,  very  near  the  front  parlor;  she  was 
in  the  parlor  very  near  the  hiill-door,  or 
standing  in  the  door-way. 

When  Major  Smith  informed  Mrs.  Surratt 
that  the  carriage  was  ready  to  take  her  to  the 
Provost  Marshal's  office,  she  requested  a 
minute  or  so  to  kneel  down  and  pray.  She 
knelt  down;  whether  she  prayed  or  not  I 
can  not  tell.  Payne  was  dressed  in  a  dark 
coat;  pants  that  seemed  to  be  black,  and 
seemingly  a  shirt-sleeve,  or  the  lower  part 
of  a  pair  of  drawers,  on  his  head,  that  made 
a  very  closely-fitting  head-dress,  hanging  down 
about  six  or  seven  inches. 

[The  prisoner,  Lewis  PaynOj  by  direction  of  the  Judge 
Advocate,  was  then  dressed  in  a  dark-gray  coat,  and  a 
shirt-sleeve  for  a  head-dress.] 

That  is  the  coat  he  wore,  and  that  is  the 
way  he  had  the  head-dress  on.  I  would  not 
positively  swear  to  the  coat,  but  it  is  as  near 
the  color  and  shape  of  that  coat  as  can  be. 

[The  coat  and  shirt-sleeve  were  put  in  evidence.] 

He  was  full  of  mud,  up  to  his  knees,  nearly. 

I  have  seen,  in  Baltimore,  in  booksellers, 
stores,  pictures  of  Jefferson  Davis,  Alexander 
H.  Stephens,  etc.,  exhibited  for  sale;  and  I 
have  seen  photographs  of  Booth  in  the  hands 
of  persons,  but  only  in  the  hands  of  those 
who  took  an  interest  in  having  him  arrested. 
I  do  not  remember  seeing  a  photograph  of 
him  before  the  assassination. 

If  I  had  seen  a  person  dressed  genteelly 
in  black  clothes,  with  a  white  neckerchief, 
representing  himself  as  a  Baptist  minister,  I 
think  I  would  recognize  him  in  the  garb 
Payne  wore,  for  he  had  taken  no  particular 
pains  to  disguise  himself;  his  face  looked 
just  the  same  as  it  does  now,  and  the  only 
difference  was  in  the  clothes. 

By  MR.  CLAMPITT. 

The  photographs  were  found  all  over  the 
house — in  the  front  parlor,  in  the  back  parlor, 
and  in  the  two  rooms  up  stairs.  There  were 
three  alburns  containing  photographs,  besides 
loose  pictures. 

[A  small  framed  colored  lithograph,  representing  Morn 
ing,  JNOOU,  and  JSight,  was  exhibited  to  the  witness.] 


124 


THE    CONSPIRACY    TRIAL. 


I  saw  this  picture  in  Mrs.  Surratt's  house, 
in  the  back  room  of  the  lower  floor,  standing 
on  the  mantel-piece,  I  believe.  I  left  it  there, 
because  I  did  not  think  any  thing  of  it.  This 
picture  was  all  that  was  visible. 

LIEUTENANT  JOHN  W.  DBMPSEY. 

For  the  Prosecution. — May  19. 

[Exhibiting  to  the  witness  the  picture  Morn,  Noon,  and 
Night.] 

I  found  this  in  the  back  room  of  the  first 
floor  of  Mrs.  Surratt's  house.  The  back  part 
was  all  sealed,  and  my  curiosity  was  excited 
by  noticing  a  piece  torn  off  the  back.  1 
opened  the  back  and  found  the  likeness  of 
J.  Wilkes  Booth,  with  the  word  "Booth" 
written  in  pencil  on  the  back  of  it. 

Cross-examined  by  MR.  AIKEN. 

I  may  have  seen  photographs  of  Davis, 
Lee;  and  other  leaders  of  the  rebellion  in 
newspapers — the  Sunday  newspapers  partic 


ularly;  and  I  have  seen  some  of  eminent 
actors — Forrest,  Macready,  and  others — ex 
posed  for  sale  at  different  places  I  was  a 
prisoner  for  thirteen  months,  and  during  that 
time  I  saw  a  good  many  of  the  leaders  of 
the  rebellion,  both  personally  and  in  pictures, 
but  I  have  not  seen  them  in  the  loyal  states, 
except  as  I  have  mentioned. 

Recalled  for  the  Prosecution. — June  3. 

[A  photograph  of  J.  Wilkes  Booth,  side  view,  was  ex 
hibited  to  the  witness.] 

This  is  the  photograph  I  found  at  the 
back  of  the  picture  "  Morn,  Noon,  and  Night," 
which  was  found  on  the  mantel-piece  in  the 
back  room  of  the  first  floor,  known,  I  believe, 
as  Mrs.  Surratt's  room.  It  was  marked,  in 
pencil,  "Booth."  The  pencil  words,  "  J. 
Wilkes  Booth,"  I  wrote  when  I  found  it.  I 
showed  the  photograph  to  an  officer  in  the 
house,  and  then  turned  it  over  to  Colonel 
Ingraham. 

[The  picture  and  photograph  were  put  in  evidence.] 


DEFENSE  OF  MRS.  MARY  E.  SURRATT. 


GEORGE  COTTINGHAM. 
For  the  Defense.— May  25. 
.  By  MR.  AIKEN. 

I  am  special  officer  on  Major  O'Beirne's 
force,  and  was  engaged  in  making  arrests 
after  the  assassination.  After  the  arrest  of 
John  M.  Lloyd  by  my  partner,  Joshua  A. 
Lloyd,  he  was  placed  in  my  charge  at  Roby's 
Post-office,  Surrattsville.  For  two  days  after 
his  arrest  Mr.  Lloyd  denied  knowing  any  thing 
about  the  assassination.  I  told  him  that  I 
was  perfectly  satisfied  he  knew  about  it,  and 
had  a  heavy  load  on  his  mind,  and  that  the 
sooner  he  got  rid  of  it  the  better.  He  then 
said  to  me,  "0,  my  God,  if  I  was  to  make 
a  confession,  they  would  murder  me!"  I 
asked,  "Who  would  murder  you?"  He  re 
plied,  "  These  parties  that  are  in  this  con 
spiracy."  "  Well,"  said  I,  "if  you  are  afraid 
of  being  murdered,  and  let  these  fellows  get 
out  of  it,  that  is  your  business,  not  mine." 
He  seemed  to  be  very  much  excited. 

Lloyd  stated  to  me  that  Mrs.  Surratt  had 
come  down  to  his  place  on  Friday  between  4 
and  5  o'clock;  that  she  told  him  to  have  the 
fire-arms  ready;  that  two  men  would  call  for 
them  at  12  o'clock,  and  that  two  men  did 
call;  that  Herold  dismounted  from  his  horse, 
went  into  Lloyd's  tavern,  and  told  him  to  go 
up  and  get  those  fire-arms.  The  fire-arms,  he 
stated,  were  brought  down;  Herold  took  one, 
and  Booth's  carbine  was  carried  out  to  him  ; 
.but  Booth  said  he  could  not  carry  his,  it 


was  as  much  as  he  could  do  to  carry  him 
self,  as  his  leg  was  broken.  Then  Booth  told 
Lloyd,  "  I  have  murdered  the  President ;  "  and 
Herold  said,  "  1  have  fixed  off  Seward."  He 
told  me  this  when  he  came  from  Bryantown, 
on  his  way  to  Washington,  with  a  squad  of 
cavalry;  I  was  in  the  house  when  he  came 
in.  He  commenced  crying  and  hallooing 
out,  "0,  Mrs.  Surratt,  that  vile  woman,  she 
has  ruined  me!  I  am  to  be  shot!  I  am  to 
be  shot !  " 

I  asked  Lloyd  where  Booth's  carbine  was; 
he  told  me  it  was  up  stairs  in  a  little  room, 
where  Mrs.  Surratt  kept  some  bags.  I  went 
up  into  the  room  and  hunted  about,  but  could 
not  find  it.  It  was  at  last  found  behind  the 
plastering  of  the  wall.  The  carbine  was  in 
a  bag,  and  had  been  suspended  by  a  string 
tied  round  the  muzzle  of  the  carbine;  the 
string  had  broken,  and  the  carbine  had  fallen 
down.  We  did  not  find  it  where  Lloyd  told  me 
it  was.  When  Lloyd  made  these  statements 
to  me  no  one  was  present  but  Mr.  Jenkins, 
a  brother  of  Mrs.  Surratt's.  Lloyd  said  that 
Mrs.  Surratt  spoke  about  the  fire-arms  be 
tween  4  and  5  o'clock  on  the  day  of  the 
assassination. 

At  the  last  interview  I  had  with  him,  when 
he  came  to  the  house  to  go  to  Washing 
ton,  lie  cried  bitterly,  and  threw  his  hands 
over  his  wife's  neck,  and  hallooed  for  his 
prayer-book.  Lloyd's  wife  and  Mrs.  Offutt 
were  in  the  room,  and  heard  all  the  conver 
sation. 


DEFENSE    OF   MRS.  MARY  E.   SURRATT. 


125 


Recalled  for  the  Defense. — May  25. 
By  MR.  AIKEN. 

Q.  Will  you  state  the  precise  language  that 
Lloyd  used  with  reference  to  Mrs.  Surratt  in 
his  confession  to  you? 

The  Judge  Advocate  objected  to  the  repeti 
tion  of  the  question.  Mr.  Aiken  stated  that 
he  proposed  to  follow  it  up  by  asking  the 
witness  if  he  had  not  made  a  different  state 
ment  to  him  (Mr.  Aiken)  in  reference  to 
what  Lloyd  had  said.  "I  ask  the  witness 
now  what  I  stated  to  him." 

WITNESS.  I  met  Mr.  Aiken  at  the  Metro 
politan  Hotel  on  Saturday  evening  last,  I 
think.  He  asked  me  to  take  a  drink.  I 
went  up  and  drank  with  him.  He  then  said, 
"  I  am  going  to  have  you  as  a  witness  in 
this  case."  He  asked  me  to  sit  down  on  a 
sofa  and  have  some  conversation.  I  said  no; 
it  would  not  look  well  for  me  to  be  sitting 
there,  but  I  would  go  outside  and  take  a 
walk.  When  we  went  outside,  the  first  ques 
tion  Mr.  Aiken  put  to  me  was,  whether  I 
was  a  Catholic.  I  said  I  was  not.  We 
walked  along,  and  he  said,  "Lloyd  has  made 
a  confession  to  you."  Said  I,  "Yes."  He 
then  said,  "Will  you  not  state  that  confes 
sion  to  me?"  I  declined  to  do  it,  but  told 
him  he  might  ask  any  questions,  and  I  would 
answer  them.  He  put  the  question  to  me,  if 
Lloyd  had  stated  that  Mrs.  Surratt  had 
come  down  there  and  told  him  to  have  the 
fire-arms  ready.  I  said  not.  I  had  an  ob 
ject  in  that  answer.  I  am  now  on  my  oath, 
and  when  on  my  oath  I  speak  the  truth,  and 
I  can  have  witnesses  to  prove  what  I  say — 
six  cavalrymen,  Mr.  Lloyd's  wife,  and  Mrs. 
Uft'utt.  He  wanted  to  pick  facts  out  of  me 
in  the  case,  but  that  is  not  my  business;  I 
am  an  officer,  and  I  did  not  want  to  let  him 
know  any  thing  either  way;  I  wanted  to 
come  here  to  the  Court  and  state  every  thing 
that  I  knew.  I  told  him  distinctly  that  I. 
would  not  give  him  that  confession ;  that  I 
had  no  right  to  do  so. 

Q  Did  I  ask  you  if  Mr.  Lloyd,  in  his  con 
fession,  said  any  thing  at  all  in  reference  to 
Mrs.  Surratt? 

A.  You  asked  me  first  whether  Lloyd  had 
made  a  confession  to  me,  and  I  said,  "Yes." 
Said  you,  "What  is  that  confession?  I 
should  like  to  know  it."  My  answer  to  you 
was,  "I  decline  giving  you  that  confession; 
but  if  you  will  ask  a  question,  I  will  answer 
you."  That  question  you  put  to  me,  and  I 
answered;  I  said  "No." 

Q.  That  Mr.  Lloyd  did  not  say  so? 

A.   I  did  say  so.     I  do  not  deny  that. 

Q.  Then  what  did  you  tell  me  this  afternoon 
with  reference  to  it? 

A.  I  told  you  the  same  thing  over  again  in 
the  witness-room,  when  you  asked  me,  before 
I  came  up  on  the  stand.  It  is  a  part  of  my 
business  (I  am  a  detective  officer)  to  gain 
my  object.  I  obtained  the  confession  from 
Lloyd  through  strategy. 


Q.  Then  you  gave  me  to  understand,  and 
you  are  ready  now  to  swear  to  it,  that  you 
told  me  a  lie? 

A.  Undoubtedly  I  told  you  a  lie  there; 
for  I  thought  you*  had  no  business  to  ask  me. 

Q.  No  business!  As  my  witness,  had  I 
not  a  right  to  have  the  truth  from  you? 

A.  I  told  you  you  might  call  me  into  court; 
and  I  state  here  that  I  did  lie  to  you ;  but 
when  put  on  my  oath  I  will  tell  the  truth. 

MRS.  EMMA  OFFUTT. 

Recalled  for  the  Defense. — June  13. 

By  MR.  AIKEN. 

On  the  evening  of  the  14th  of  April,  Mr. 
Lloyd  was  very  much  in  liquor,  more  so  than 
I  have  ever  seen  him  in  my  life.  I  insisted 
on  his  lying  down,  and  I  had  to  help  him 
take  off  his  coat.  In  a  few  minutes  he  got 
up  and  said  he  was  too  sick,  and  would  go 
into  the  dining-room;  but  he  went  into  the 
bar-room  after  tliat.  For  the  last  four  or 
five  months  I  have  noticed  his  drinking 
freely. 

I  did  not  hear  his  full  confession  to  Cap 
tain  Cottingham;  but  I  heard  some  remarks 
he  made  on  the  Sunday  night  when  he  was 
brought  up  from  Bryantown,  on  hif  way  to 
Washington.  I  was  there  all  the  time,  and 
I  did  not  hear  him  say,  referring  to  Mrs.  Sur 
ratt,  "That  vile  woman,  she  has  ruined  me." 

Mr.  AIKEN.  I  wish  to  state  to  the  Court 
that  at  the  time  Mrs.  Offutt  gave  her  tes 
timony  before,  she  came  here  very  unwell. 
If  I  have  been  correctly  informed,  she  had 
been  suffering  severely  from  sickness,  and 
had  taken  considerable  laudanum.  Her  mind 
was  considerably  confused  at  the  time,  and 
she  now  wishes  to  correct  her  testimony  in 
an  important  particular. 

WITNESS.  After  I  left  here  the  other  day, 
I  thought  of  my  reply  to  a  question  that 
was  asked  me,  and  it  has  been  on  my  mind 
ever  since,  and  I  requested  Mr.  Aiken  to 
mention  it  to  the  Court. 

I  was  asked  by  the  Judge  Advocate  if 
Mrs.  Surratt  handed  me  a  package,  and  I 
said  "No;"  but  she  did  hand  me  a  package, 
and  said  she  was  requested  to  leave  it  there. 
That  was  about  half-past  5  o'clock,  and  be 
fore  Mr.  Lloyd  came  in.  After  that  I  saw 
the  package  lying  on  the  sofa  in  the  parlor. 
Shortly  afterward  Mr.  Lloyd  came  in. 
When"  I  saw  Mrs.  Surratt  and  Mr.  Lloyd 
talking  together  at  the  buggy  in  the  yard,  I 
was  in  and  out  all  the  time.  I  did  not  see 
Mr.  Lloyd  go  into  the  parlor,  but  I  saw  him 
on  the  piazza,  and  I  think  from  that  that  he 
must  have  gone  into  the  parlor.  He  had  a 
package  in  his  hand,  but  I  did  not  see  Mrs. 
Surratt  give  it  to  him.  After  the  package 
was  handed  to  me,  it  might  have  been  taken 
by  Mrs.  Surratt  and  handed  to  Lloyd,  but  I 
did  not  see  her  give  it  to  him. 

I  learned  from  Mrs.  Surratt  that  she  would 


12G 


THE    CONSPIRACY   TRIAL. 


not  have  come  down  to  Surrattsville  that 
day,  had  it  not  been  for  the  letter  she  re 
ceived;  and  I  saw  business  transacted  while 
she  was  there. 

Since  January  last  I  have  met  Mrs.  Sur 
ratt  several  times.  I  never  heard  from  her 
a  word  concerning  any  plot  or  conspiracy, 
and  never  heard  any  disloyal  expressions 
from  her. 

I  know  that  Mrs.  Surratt's  sight  is  defect 
ive.  On  one  occasion,  last  December,  she 
came  down  to  see  her  mother,  who  was  lying 
very  sick.  On  being  told  by  a  servant  that 
Mrs.  Surratt  was  coming  toward  the  door,  I 
went  there  to  her,  and  said,  ''Why,  Mrs.  Sur 
ratt!"  When  she  said,  "0,  Mrs.  Offutt,  is 
that  you  ?"  and  then  she  added,  "  I  can 
scarcely  see."  I  led  her  into  the  parlor,  and 
she  told  me  that  her  eyes  were  failing  very 
fast. 

GEORGE  H.  CALVERT. 

For  the  Defense.— May  25. 

By  MR.  AIKEN. 

I  reside  in  Bladensburg,  and  am  acquainted 
with  the  prisoner,  Mrs.  Mary  E.  Surratt.  On 
the  12th  of  April  last  I  addressed  a  business 
letter  to  her.  I  addressed  more  than  one  to 
her,  but  the  last  was  on  the  12th  of  April. 

[Mr.  AIKEN  called  upon  the  Government  to  produce  the 
letter,  stating  that  he  would  suspend  further  examination 
of  the  witness  till  it  could  be  produced.] 

Recalled  for  the  Defense. — May  26. 
By  MR.  AIKEN. 

[A  letter  was  handed  to  the  witness. 

RIVERSDALE,  April  12,  1865. 
Mrs.  M.  E.  Surratt: 

DEAR,  MADAM — During  a  late  visit  to  the 
lower  portion  of  the  county,  I  ascertained  of 
the  willingness  of  Mr.  Nothey  to  settle  with 
you,  and  desire  to  call  your  attention  to  the 
fact,  in  urging  the  settlement  of  the  claim  of 
my  late  fathers  estate.  However  unpleasant, 
I  must  insist  upon  closing  up  this  matter,  as 
it  is  imperative,  in  an  early  settlement  of  the 
estate,  which  is  necessary. 

You  will,  therefore,  please  inform  me,  at 
your  earliest  convenience,  as  to  how  and 
when  you  will  be  able  to  pay  the  balance 
remaining  due  on  the  land  purchased  by  your 
late  husband. 

I  am.  dear  madam,  yours  respectfully, 
GEO.  H.  CALVERT,  JR. 

That  is  the  letter  I  addressed  to  Mrs.  Sur 
ratt  on  the  12th  of  April. 

[The  letter  was  read  and  offered  in  evidence.] 

B.  F.  GWYNN. 

For  the  Defense. — May  25. 
By  MR.  AIKEN. 

I  reside  in  Prince  George's  County,  near 
Surrattsville.  I  have  been  acquainted  with 
Mrs.  Surratt  seven  or  eight  years. 


On  Friday,  the  day  of  the  murder  of  the 
President,  as  I  was  passing  in  my  buggy, 
some  one  hailed  me,  and  said  Mrs.  Surratt. 
wanted  to  see  me  in  the  tavern.  She  gave 
me  a  letter  'for  Mr.  Nothey,  and  asked  me 
to  read  it  to  him,  which  I  did.  I  have  trans 
acted  some  business  for  her  relative  to  the 
sale  of  lands  her  husband  had  sold  to  Mr. 
Nothey  ;  and  I  have  personal  knowledge  of 
Mr.  Nothey  buying  land  from  Mrs.  Surratt's 
late  husband  ;  I  was  privy  to  the  transaction. 

About  half-past  4  on  that  day,  the  14th,  I 
parted  with  Mr.  Lloyd  on  the  road  from 
Marlboro,  about  five  miles  from  Surrattsville, 
and  did  not  see  him  afterward.  He  had 
been  drinking  right  smartly. 

Recalled  for  the  Defense. — May  26. 
By  MR.  AIKEN. 

[A  letter  was  handed  to  the  witness.] 

This  is  the  letter  I  carried  to  Mr.  Nothey 
from  Mrs.  Surratt,  and  which  I  read  to  him 
on  the  14th  of  April : 

SURKATTSVILLE,  MD.,  April  14,  1865. 
Mr.  John  Nothey: 

SIR- -I  luvve  this  day  received  a  letter  from 
Mr.  Calvert,  intimating  that  either  you  or 
your  friend  have  represented  to  him  that  I 
am  not  willing  to  settle  with  you  for  the  land. 

You  know  that  1  am  ready,  and  have  been 
waiting  for  the  last  two  years;  and  now,  if 
you  do  not  come  within  the  next  ten  days,  1 
will  settle  with  Mr.  Calvert,  and  bring  suit 
against  you  immediately. 

Mr.  Calvert  will  give  you  a  deed,  on 
receiving  payment. 

M.  E.  SURRATT, 
Administratrix  of  J.  H.  Surratt. 

JOHN  NOTHEYT. 

For  the  Defense. — May  26. 
By  MR.  AIKEN. 

I  reside  about  fifteen  miles  from  Washing 
ton,  in  Prince  George's  County.  Some  years 
ago  1  purchased  seventy-five  acres  of  land 
from  Mr.  John  Surratt,  sen.  Mrs.  Surratt 
sent  me  word  that  she  wanted  me  to  come  to 
Surrattsville  to  settle  for  this  piece  of  land. 
I  owed  her  a  part  of  the  money  on  it.  I 
met  her  there  on  Tuesday  in  regard  to  it. 
On  Friday,  the  14th  of  April,  Mr.  Gwynn 
brought  me  a  letter  from  Mrs.  Surratt,  but  I 
did  not  see  her  that  day. 

JOSEPH  T.  NOTT. 

For  the  Defense. — May  30. 

By  Mr.  AIKEN. 

For  the  past  two  or  three  months  I  have 
been  tending  bar  at  Mr.  Lloyd's  tavern  at 
Surrattsville. 

On  the  14th  of  April  I  saw  Mr.  Lloyd  in 
the  morning,  and  again  at  sundown.  He 
had  been  to  Marlboro  on  that  day  ;  and  when 
he  returned,  he  brought  some  fish  and  oys- 


DEFENSE    OF    MRS.  MARY    E.    SURRATT. 


127 


ters,  which  he  carried  round  to  the  kitchen 
in  the  back  yard.  For  some  weeks  past  Mr. 
Lloyd  had  been  drinking  a  good  deal;  nearly 
every  day,  and  night,  too,  he  was  pretty  tight. 
At  times  he  had  the  appearance  of  an  insane 
man  from  drink.  I  saw  him  at  the  buggy 
in  which  Mrs.  Surratt  was,  assisting  in  fixing 
it.  He  was  pretty  tight  that  evening. 

By  MR.  CLAMPITT. 

I  first  saw  Mr.  Lloyd  that  evening  after 
bis  return  from  Marlboro,  driving  round  to 
the  kitchen.  I  was  at  the  stable,  and  coming 
out  I  saw  him  going  round  there.  Mr. 
Weichmann  was  there,  and  Captain  Bennett 
F.  Gwynn  drove  up  in  front  of  the  bar-room. 

Recalled  for  cross-examination. — June  2. 
By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

I  have  never,  to  my  knowledge,  done  or 
said  any  thing  against  the  Government,  or 
the  Union  party  in  Maryland,  during  this 
struggle.  I  have  never  taken  sides  with  the 
secession  element  there,  nor  said  any  thing 
against  the  officers  of  the  Government  or  the 
Executive. 

I  know  Mr.  Edward  Smoot.  I  do  not 
remember  saying  to  him,  after  the  murder  of 
the  President,  on  his  stating  that  John  II. 
Surratt  was  one  of  the  murderers,  that  he 
was  undoubtedly  in  New  York  by  that  time; 
I  may  or  may  not  have  said  so;  and  I  might 
have  said,  "John  knows  all  about  this  mat 
ter;"  but  I  do  not  recollect  it;  and  I  have 
no  recollection  whatever  of  saying  that  six 
months  ago  I  could  have  told  all  about  this 
matter;  nor  do  I  remember  telling  him  not 
to  mention  any  thing  about  the  conversation 
I  had  had  with  him.  I  think  if  I  had  said 
so  to  Mr.  Smoot,  I  should  remember  it,  but  I 
do  not.  Indeed,  I  do  not  recollect  seeing  Mr. 
Smoot. 

By  MR.  AIKEN. 

I  may  have  seen  Mr.  Smoot  on  Saturday, 
the  15 th  of  April  last,  but  I  have  no  recol 
lection  of  it;  nor  of  any  such  conversation 
with  him. 

By  the  COURT. 

I  do  not  think  I  rejoiced  at  the  success  of 
the  rebels  at  the  first  battle  of  Bull  Run.  I 
belong  to  the  Catholic  Church  when  I  belong 
to  any  Church  at  all.  I  have  not  belonged 
to  any  Church  for  seven  year.s. 

ANDREW  KALI,ENBACH. 

For  the  Defense. — June  13. 

By  MR.  AIKEN. 

I  was  present  in  the  back  room  of  Mr. 
Lloyd's  house  when  he  came  from  Bryan- 
town,  at  the  time  of  his  arrest.  I  did  not 
hear  Lloyd  say  to  Captain  Cottingham,  "Mrs. 
Surratt,  that  vile  woman,  she  has  ruined  me." 


Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlXGHAM. 

The  conversation  began  directly  Mr.  Lloyd 
came  into  the  house,  and  lasted  about  five 
minutes.  Mr.  Lloyd,  Mrs.  Lloyd,  and  Mrs. 
Offutt  were  there.  Lloyd  told  Cottingham 
that  he  was  innocently  persuaded  into  this 
matter  by  Mrs.  Surratt,  or  Mrs.  Surratt's 
family,  I  believe  lie  said,  but  I  will  not  say 
positively  that  he  said  by  whom,  or  that 
Mrs.  Surratt's  name  was  mentioned  in  the 
conversation.  Lloyd  told  Cottingham  that 
the  carbine  was  hid  up  stairs,  and  after  Lloyd 
was  gone  Mr.  Cottingham  went  up  for  it. 

J.  Z.  JENKINS. 

For  the  Defense. — May  30. 
By  MR.  AIKEN. 

I  reside  in  Prince  George's  County,  Mary 
land.  I  was  at  Mr.  Lloyd's  on  the  14th, 
when  Louis  J.  Weichman  and  Mrs.  Surratt 
drove  up  to  the  house.  Mrs.  Surratt  showed 
me  a  letter  from  George  Calvert,  also  two 
judgments  that  Mr.  Calvert  obtained  in  the 
Circuit  Court  of  our  county  against  Mr.  Sur 
ratt,  sen.  She  said  this  letter  brought  her 
there,  and  I  made  out  the  interest  on  those 
judgments  for  her.  She  expressed  no  wish 
to  see  Joli,n  M.  Lloyd,  and  she  was  ready  to 
start  some  time  before  he  came,  and  was  on 
the  point  of  going  when  Lloyd  drove  up. 
Her  business  was  with  Ciptain  Gwynn,  and 
when  he  came  in  sight  she  went  back  and 
staid.  Lloyd  was  very  much  intoxicated  at 
the  time. 

My  intercourse  with  Mrs.  Surratt  has  been 
of  an  intimate  character.  She  has  never,  to 
my  knowledge,  breathed  a  word  that  was  dis 
loyal  toward  the  Government;  nor  have  I  ever 
heard  her  make  any  remark  showing  her  to 
have  knowledge  of  any  plan  or  conspiracy  to 
capture  or  assassin  ate -the  President  or  any 
member  of  the  Government.  I  have  known 
her  frequently  to  give  milk,  tea,  and  such 
refreshments  as  she  had  in  her  house,  to 
Union  troops  when  they  were  passing.  Some 
times  she  received  pay  for  it;  at  other  times 
she  did  not.  I  recollect  when  a  large  number 
of  horses  escaped  from  Giesboro,  many  of 
them  were  taken  up  and  put  on  her  premises. 
These  horses  were  carefully  kept  and  fed  by 
her,  and  afterward  all  were  given  up.  She 
received  a  receipt  for  giving  them  up,  but 
never  got  any  pay,  to  my  knowledge. 

I  know  that  Mrs.  Surratt's  eyesight  is  de 
fective.  I  have  seen  a  man  by  the  name  of 
A.  S.  Howell  stopping,  I  believe  twice,  at 
Mrs.  Surratt's  hotel.  He  was  stopping  there 
as  other  travelers  do. 

By  MR.  CLAMPITT. 

I  saw  Mrs.  Surratt,  at  Surrattsville,  a  few 
days  before  the  assassination  of  the  Presi 
dent, 

Q.  At   that  meeting  did  she  not  state  to 


128 


THE    CONSPIRACY    TRIAL. 


you,  when  you  asked  for  the  news,  that  our 
army  had  captured  General  Lee's  army  and 
taken  Richmond? 

Assistant  Judge  Advocate  BURNETT  ob 
jected  to  the  question  as  incompetent  and 
irrelevant. 

Mr.  CLAMPITT  stated  that  the  object  of  the 
question  was  to  show  that  the  accused,  Mary 
E.  Surratt,  had,  a  few  days  before  the  assas 
sination,  exhibited  in  her  expressions  a  loyal 
feeling. 

Assistant  Judge  Advocate  BURNETT  stated 
that  the  way  to  prove  her  character  for  loy 
alty  was  by  bringing  witnesses  who  knew 
her  reputation  in  that  respect,  and  not  by 
bringing  in  her  own  declarations. 

Mr.  CLAMPITT  waived  the  question. 

Mrs.  Surratt's  reputation  for  loyalty  was 
very  good.  I  never  heard  it  questioned,  and 

1  never  heard  her  express  any  disloyal  sen 
timents. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNQHAM. 

Mrs.  Surratt  is  my  sister.  I  live  about  a 
mile  and  a  half  this  side  of  her  place.  I 
was  arrested  by  the  Government  about  ten 
days  ago.  About  10  or  11  o'clock  the  night 
before,  I  met  a  man  by  the  name  of  Kallen- 
bach,  and  another  by  the  name  of  Cottingham. 
All  that  I  said  on  that  occasion,  that  I  re 
member,  was  that  my  sister  had  fed  his 
family  (Kallenbach's);  but  I  did  not  say 
that  if  Kallenbach  or  any  one  else  testified 
against  my  sister,  that  I  would  send  him  to 
hell,  or  see  that  they  were  put  out  of  the 
way,  nor  did  I  use  any  threats  against  him 
in  case  he  appeared  as  a  witness  against 
Mrs.  Surratt.  What  I  did  say  was,  that  I 
understood  he  was  a  strong  witness  against 
my  sister,  which  he  ought  to  be,  seeing  that 
she  had  raised  his  family  of  children.  I 
disremember  calling  him  a  liar  during  the 
conversation,  and  if  there  was  any  angry 
or  excited  conversation,  I  did  not  mean 
it  any  how.  He  said  nothing  to  me 
about  John  H.  Surratt  going  to  Richmond 
with  the  full  knowledge  and  consent  of  his 
mother.  Mrs.  Lloyd  was  there  and  heard 
our  conversation,  and  so  also  was  Mr.  Cot 
tingham. 

On  the  14th  of  April,  when  Mrs.  Surratt 
was  at  Lloyd's,  1  saw  Mr.  Gwynn  there,  and 
perhaps  from  ten  to  fifteen  others,  during 
that  time;  among  them,  Kallenbach  and 
Walter  Edelin.  I  was  there  from  between 

2  and  3  o'clock  until  a  little  after  sundown. 
I  saw  Mr.  Surratt  speaking  to  Mr.  Gwynn 
in    the   parlor;  Weichmann  also  was  in  the 
parlor,  I  think.     Gwynn  left  the  house  before 
Mrs.  Surratt. 

I  think  that  during  the  war  my  attitude 
toward  the  Government  has  been  perfectly 
loyal.  During  the  revolution,  I  have  spent 
$3,000  in  my  district  to  hold  it  in  the  Union, 
and  during  the  struggle  I  have  taken  no  part 


against  the  Government.  I  have  been  en 
tirely  on  the  side  of  the  Government  during 
the  whole  war,  and  never,  by  act  or  word, 
have  I  aided  or  abetted  the'  rebellion,  and 
never  has  the  scrawl  of  a  pen  gone  from 
me  across  to  them,  nor  from  them  to  me.  I 
have  never  fed  any  of  their  soldiers,  nor 
induced  any  soldiers  to  go  into  their  army, 
nor  aided  and  assisted  them  in  any  way. 

He-examined  by  MR.  AIKEN. 

I  am  under  arrest,  but  I  do  not  know  what 
for.  The  commissioners  of  our  county  of 
fered  $2,000  for  any  information  that  could 
be  given,  leading  to  the  arrest  of  any  party 
connected  with  the  assassination,  which  Mr. 
Cottingham  claimed  on  account  of  having 
arrested  John  M.  Lloyd,  and  he  asked  me  if 
I  would  not  see  the  State's  Attorney  and  see 
whether  he  could  get  it  or  not. 

When  I  said  that  Mr.  Kallenbach  ought 
to  be  a  strong  witness  against  my  sister,  on 
account  of  her  bringing  his  children  up,  I 
spoke  ironically. 

J.  Z.  JENKINS. 

Recalled  for  the  Defense, — June  7. 
By  MR.  AIKEN. 

In  1861,  about  the  time  of  the  first  Bull 
Run  fight,  I  got  a  United  States  flag  from 
Washington,  which  I  and  several  of  our 
Union  neighbors  raised.  There  came  a  report 
shortly  after  that  it  was  going  to  be  taken 
down  by  the  secesh  sympathizers.  I  went 
round  the  neighborhood  and  collected  some 
twenty  or  thirty  men  with  muskets,  double- 
barreled  guns,  or  whatever  they  had,  and 
we  lay  all  night  round  the  flag  to  keep  it  up. 
I  was  there  one  night  and  a  day,  1  think. 
At  the  time  of  the  election,  when  they  were 
all  Democrats  round  there  except  myself,  I 
used  money,  when  I  had  n't  it  to  spare  and 
riy  family  needed  it,  to  get  Union  voters  into 
Maryland.  I  remember  bringing  Richard 
Warner  from  the  Navy  Yard,  Washington, 
o  the  polls.  He  had  not  been  away  long 
enough  to  lose  his  vote.  I  have  never  had 
any  intercourse,  one  way  or  another,  with 
the  enemies  of  my  country.  At  the  election 
or  Congress,  in  1862,  I  was  not  allowed  to 
vote;  I  was  arrested  on  the  morning  of  the 
election.  I  took  the  oath  of  allegiance  at 
he  time  they  were  voting  on  the  adoption  of 
:he  new  constitution,  and  voted  that  day. 
The  last  time  I  voted  for  member  of  Congress 
was  for  Harris;  then,  for  the  first  time  in 
my  life,  I  voted  the  Democratic  ticket.  I 
lave  been  an  old-line  Whig.  I  have  suf- 
ered  from  the  war  in  the  loss  of  my  negroes; 
3ut  I  never,  to  my  recollection,  made  any 
complaint  about  that.  When  the  State  de 
clared  her  new  constitution,  I  was  willing  for 
them  to  go. 


DEFENSE    OF   MRS.  MARY   E.  SURRATT. 


129 


RICHARD  SWEENEY. 

Tor  'he  Defense. — June  12. 

By  MR.  AIKEN. 

1  met  Johix  M.  Lloyd  at  Marlboro  on  the 
14th  or*  April  )ast,  and  rode  back  with  him 
part  of  the  way  toward  his  home.  He  was 
considerably  under  the  influence  of  liquor, 
and  lie  drank  on  the  road. 

By  MR.  CLAMPITT. 

I  am  acquainted  with  J.  Z.  Jenkins,  the 
brother  of  Mrs.  Surra tt  I  have  known  him 
for  ten  years,  and  can  speak  confidently  of 
his  reputation  as  a  loyal  man.  At  the  outset 
of  these  difficulties  he  was  a  zealous  Union 
man.  A  Union  flag  was  erected  within  one 
hundred  yards  of  where  I  boarded,  and  there 
was  a  rumor  that  it  was  to  be  cut  down,  and 
Jenkins  was  one  of  the  men  who  took  a  gun 
and  remained  there  all  night  for  the  purpose 
of  guarding  the  flag. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

Lloyd  returned  from  Marlboro  to  Sur- 
rattsville  in  his  buggy;  I  was  on  horseback. 
We  both  drank;  I  do  not  know  which  drank 
the  most;  we  drank  from  the  same  bottle. 
Lloyd  was  excited  in  his  conversation  and 
deportment  generally;  but  he  kept  the  road 
straight,  and  I  did  not  see  him  deviate  from 
it.  It  was  six  miles  to  Surrattsville  from 
where  we  parted.  I  thought  he  could  take 
care  of  himself. 

Q.  Have  you  been  entirely  loyal  yourself 
during  the  rebellion  ? 

A.  I  suppose  so,  and  think  so.  I  have 
never  done  any  thing  inimical  to  the  interests 
of  the  Government,  that  I  know  of. 

Q.  Have  you  never  desired  the  success  of 
the  rebellion  ? 

A.  No,  sir;  I  never  expressed  any  desire 
for  its  success. 

Q.  Have  you  always  desired  that  the  Gov 
ernment  should  succeed  in  putting  down  the 
rebellion  ? 

A.  I  can  not  say  but  what  my  feelings 
were  neutral  in  the  matter. 

Q.  Are  you  quite  sure  they  were  neutral? 
It  is  very  difficult  to  be  neutral  in  such  a  war 
as  this  has  been. 

A.  I  think  I  was  about  as  strictly  neutral 
as  anybody  else. 

Q.  When  you  examine  your  feelings  closely, 
if  you  can  recall  them,  have  you  not  an  im 
pression  that  at  some  time  or  other  you 
preferred  that  the  rebellion  should  succeed? 

A.  I  may  possibly  have  done  so.  I  think 
I  exercised  a  neutral  feeling  very  nearly. 

Q.  You  were  neutral  in  your  conduct? 

A.  And  in  my  feelings— as  strictly  neutral, 
I  think,  as  anybody  else. 

Q.  You  think  you  were  perfectly  indif 
ferent  whether  the  Government  succeeded  or 
failed. 

A.  I  was. 

9 


JAMES  LUSBY. 

For  the  Defense. — June  2. 

By  MR.  AIKEN. 

I  reside  in  Prince  George's  County,  Md.  I 
was  at  Marlboro  on  Good-Friday,  the  day 
that  Mr.  Lincoln  was  killed.  Mr.  Lloyd 
and  I  returned  from  Marlboro  to  Surratts 
ville  together.  He  was  very  drunk  on  that 
occasion  ;  I  got  there  about  a  minute  and  a 
half,  perhaps,  before  he  did.  I  drove  to  the 
bar-room  door,  and  he  went  round  to  the  front 
door.  I  saw  Mrs.  Surratt  just  as  she  was  about 
fo  start  to  go  home.  Her  buggy  was  standing 
there  at  the  gate,  when  we  drove  up,  and 
she  left  in  fifteen  or  twenty  minutes  after 
that 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

When  I  got  out  of  my  wagon,  I  went  into 
the  bar-room  to  get  a  drink;  and  I  do  not 
know  what  took  place  in  the  mean  time, 
when  Lloyd  went  round  the  house.  I  am 
quite  sure  Lloyd  was  drunk.  1  had  been 
quite  smart  in  liquor  in  the  course  of  the  day 
before  I  met  Lloyd,  and  then  took  drinks 
with  Lloyd;  but  I  do  not  think  I  was  as 
tight  as  he;  nor  do  I  think  I  am  altogether 
mistaken  as  to  who  was  drunk  that  day.  I 
did  not  see  him  take  the  fish  out  of  his 
buggy.  He  did  not  drive  into  the  yard ;  he 
drove  to  the  front  gate,  I  know ;  I  did  not 
see  him  go  out.  It  is  twelve  miles  from  Marl 
boro  to  Surrattsville — about  two  and  a  half 
hours'  drive.  We  drove  along  pretty  brisk. 

J.  V.  PILES. 

For  the  Defense. — June  13. 
By  MR.  AIKEN. 

I  live  about  ten  miles  from  Washing 
ton,  in  Prince  George's  County,  Md.  I  am 
personally  acquainted  with  J.  Z.  Jenkins, 
and  have  known  him  ever  since  I  was  a 
little  boy.  I  regarded  him,  formerly,  as  one 
of  the  most  loyal  men  in  that  part  of  the 
country.  I  thought  that  he  and  I  were  two 
of  the  most  loyal  men  there,  at  the  begin 
ning  of  the  rebellion.  A  flag  was  raised,  sent 
down,  as  I  understood,  by  Mr.  John  Murphy, 
the  butcher,  who  lived  at  the  Navy  Yard, 
Washington,  about  a  month  before  the  riots 
in  Baltimore.  A  little  while  after,  the  news 
was  spread,  that  a  party  from  the  Southern 
States,  or  from  the  lower  counties  of  Mary 
land,  were  coining  to  cut  it  down.  About 
twenty  men  were  raised  in  our  neighbor 
hood,  who  armed  themselves  to  protect  the 
flag,  and  Mr.  Jenkins,  I  believe,  was  among 
the  number  who  staid  with  us  that  night. 
I  have  never  heard  a  disloyal  sentiment 
from  Mr.  Jenkins,  nor  do  I  know  of  any 
overt  acton  his  part  that  might  be  construed 
into  disloyalty ;  but  I  have  not  been  in  his 
company  of  late.  About  six  months  ago  I 


130 


THE  CONSPIRACY   TRIAL. 


had  some  conversation  with  him,  when  he 
said  he  was  as  good  a  loyal  man  as  I  was. 
Whether  he  regarded  me  disloyal,  and  him 
self  too,  or  whether  he  regarded  us  both 
loyal,  I  can  not  say. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

Since  1862  I  have  not  heard  any  direct 
expression  of  opinion  from  him  ;  but  since  his 
negroes  have  been  taken  from  him,  rumor 
gays  he  is  not  quite  so  good  a  Union  man  as 
he  was  in  the  beginning.  That  is  the  gen 
eral  rumor. 

J.  C.  THOMPSON. 

For  the  Defense. — June  7. 
By  MR.  AIKEN. 

I  live  at  Tee  Bee,  Prince  George's  County, 
Maryland.  I  have  known  J.  Z.  Jenkins 
since  1861,  and  have  always  considered  him 
a  loyal  man. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  do  not  know  that  I  am  a  competent 
judge  of  loyalty;  I  have  always  considered 
myself  loyal,  and  I  think  that  such  has 
been  my  reputation.  I  have  never  desired 
the  success  of  the  Southern  rebellion,  and 
have  been  all  the  time  on  the  side  of  the 
Government 

DR.  J.  H.  BLANDFORD. 

For  the  Defense. — June  7. 
By  MR.  AIKEN. 

I  am  acquainted  with  J.  Z.  Jenkins,  and 
have  regarded  him  as  loyal  to  the  Govern 
ment  of  the  United  States.  I  never  heard 
him  express  any  disloyal  sentiments;  and  at 
the  beginning  of  the  war,  he  was  generally 
avoided  by  those  who  were  not  thoroughly 
in  favor  of  the  administration.  Mr.  Jenkins, 
I  know,  supported  the  opposition  candidates 
to  the  Democracy. 

I  know  Andrew  Kallenbach;  he  is  a 
Democrat,  and  has  always  acted  with  the 
Democratic  party. 

WM.  P.  WOOD. 

For  the  Defense. — June  5. 

By  MR.  CLAMPITT 

I  am  at  present  Superintendent  of  the  Old 
Capitol  Prison.  I  know  J.  Z.  Jenkins,  and 
have  been  intimately  acquainted  with  him 
for  five  years.  In  1860  and  1861,  Mr.  Jen 
kins  was  counted  as  one  of  the  most  reliable 
Union  men  in  that  district,  and  I  know  that 
up  to  1862  he  labored  himself,  and  urged 
his  friends  to  labor,  and  spent  his  means 
freely,  to  keep  the  State  of  Maryland  in  the 
Union.  In  1862  and  1863,  I  understood  that 
he  came  to  this  city  to  obtain  voters  who 


had  lea  the  State  of  Maryland,  but  who  had 
not  lost  their  residence,  to  return  to  Mary 
land  to  vote  the  Union  ticket. 

I  do  not  know  of  my  own  knowledge,  but 
it  was  generally  understood  by  those  acting 
with  the  administration,  that  after  the  first 
battle  of  Bull  Run,  Mr.  Jenkins  procured  a 
United  States  flag  and  hoisted  it  in  his 
county,  and  that,  when  certain  rebel  sym 
pathizers  threatened  to  haul  it  down,*  he 
gathered  a  band  of  from  twenty  to  fifty  Union 
men,  and  stood  by  it  all  night  to  protect  it. 
I  believe  Mr.  Jenkins  to  be  a  loyal  man.  I 
never  heard  him  utter  an}r  sentiments  against 
the  Government  of  the  United  States,  but  he 
is  very  bitter  on  the  administration  on  ac 
count  of  the  negroes.  Outside  of  this.  1 
believe  him  to  be  a  truly  loyal  man.  The 
people  down  there,  who,  in  the  early  part  of 
the  war,  acted  with  the  administration,  are 
now  dissatisfied  with  it  on  account  of  it« 
action  on  the  subject  of  slavery,  and  there  ia 
scarcely  a  single  friend  of  the  administration 
in  that  county  now. 

I  never  heard  him  express  any  desire  for 
the  success  of  the  South;  but  I  have  heard 
him  express  himself  very  positively  the  other 
way.  Mr.  Jenkins  is  now  under  arrest  at 
the  Old  Capitol  Prison,  but  I  do  not  know 
what  for. 

"Cross-examined  by  the  JUDGE  ADVOCATE. 

Q.  Do  you  riot  regard  such  bitter  hostility 
to  the  Government,  in  a  civil  war  like  this, 
as  in  the  interest  of  the  public  enemy,  and 
therefore  disloyal  ? 

A.  Lately  I  have  not  considered  him  sound 
on  the  subject,  and  have  had  very  little  to 
do  with  him,  except  on  account  of  former 
friendship  in  past  times.  I  thought  then  he 
was  as  loyal  as  any  man  in  the  county,  and 
regarded  him  as  such,  and  treated  him  as  a 
friend;  but  at  the  last  election  he  voted  for 
Harris,  and  was  in  with  these  other  parties, 
and  I  did  not  like  that  state  of  affairs,  and 
hence  had  not  that  political  confidence  in 
him  that  I  had  previously. 

Miss  ANNA  E.  SURRATT. 

For  the  Defense. — May  30. 

By  MR.  AIKEN. 

I  was  arrested  on  the  17th  of  April,  and 
have  since  been  confined  at  Carroll  Prison. 

I  have  met  Atzerodt,  the  prisoner  at  the 
bar,  at  our  house  in  Washington  City.  I  do 
not  think  he  remained  over  night  but  once. 
He  called  very  often,  and  asked  for  that  man 
Weichman.  'He  was  given  to  understand 
that  he  was  not  wanted  at  the  house;  ma 
said  she  did  not  care  about  having  stranger* 
there.  The  last  time  Atzerodt  was  there« 
Weichman  engaged  the  room  for  him,  and 
asked  ma  to  allow  him  to  stay  there  all  night 
They  were  sitting  in  the  parlor,  and  made 
several  signs  over  to  each  other.  Weichman 
and  he  then  left  the  room,  and  presently 


DEFENSE  OF  MRS.  MARY  E.  SURRATT. 


131 


Weichman  came  back  and  asked  ma  if  she 
would  have  any  objections  to  Atzerodt  re 
maining  there  that  night;  that  he  did  not 
feel  at  home  at  an  hotel.  After  thinking  for 
some  time,  ma  said,  "Well,  Mr.  Weichman, 
I  have  no  objections."  Mr.  Weichman  was 
a  boarder  at  my  mother's  house,  and  was  but 
too  kindly  treated  there.  It  was  my  mother's 
habit  to  sit  up  for  him  at  night,  when  he  was 
out  of  the  house;  she  would  sit  up  and  wait 
for  him  the  same  as  for  my  brother. 

Payne  first  came  to  our  house  one  night 
after  dark,  and  left  very  early  the  next  morn 
ing.  That  was  not  long  after  Christmas. 
Some  weeks  afterward,  he  came  one  night 
when  we  were  all  in  the  parlor.  Weichman 
went  to  the  door  and  brought  the  gentleman 
in,  and  I  recognized  him  as  the  one  who  had 
been  there  before  under  the  name  of  Wood. 
I  did  not  know  him  by  the  name  of  Payne  at 
all.  I  went  down  stairs  to  tell  ma  that  he 
was  there.  She  was  in  the  dining-room.  She 
said  she  did  not  understand  why  strange  per 
sons  should  call  there,  but  she  supposed  their 
object  was  to  see  my  brother,  and  she  would 
treat  them  politely,  as  she  was  always  in  the 
habit  of  treating  every  one.  He  called  two  or 
three  times  after  that — perhaps  the  same 
week,  or  two  weeks  after — I  can  not  say 
exactly.  On  this  visit,  as  we  were  sitting  in 
the  parlor,  he  said,  "Mrs.  Surratt,  if  you  have 
no  objection,  I  will  stay  here  to-night;  I  in 
tend  to  leave  in  the  morning."  And  I  believe 
he  did  leave  the  next  morning. 

I  have  met  John  Wilkes  Booth  at  our 
house.  The  last  time  he  was  there  was  on 
Friday,  the  14th,  I  think;  I  did  not  see  him; 
I  heard  he  had  been  there. 

My  mother  went  to  Surrattsville  on  the 
Friday  of  the  assassination,  and  I  think  her 
carriage  was  at  the  door  at  the  time  Mr. 
Booth  called.  I  heard  some  one  come  up 
the  steps  as  the  buggy  was  at  the  door,  and 
ma  was  ready  to  start  Ma  had  been  talk 
ing  about  going  during  the  day,  before  Booth 
came,  and  perhaps  the  day  before;  she  said 
she  was  obliged  to  go  on  some  business  in 
regard  to  some  land.  Mr.  Booth  only  staid 
a  very  few  minutes.  He  never  staid  long 
when  he  came. 

fA  picture,  called  "  Morning,  Noon,  and  Night,"  was 
exhibited  to  the  witness.] 

That  picture  belonged  to  me;  it  was  given 
to  me  by  that  rnan  Weichman,  and  1  put  a 
photograph  of  John  Wilkes  Booth  behind  it. 
I  went  with  Miss  Honora  Fitzpatrick  to  a 
daguerrean  gallery  one  day  to  get  her  picture ; 
we  saw  some  photographs  of  Mr.  Booth  there, 
and,  being  acquainted  with  him,  we  bought 
two  and  took  them  home.  When  my 
brother  saw  them,  he  told  me  to  tear  them 
up  and  throw  them  in  the  fire,  and  that,  if  I 
did  not,  he  would  take  them  from  me.  So  I 
hid  them.  I  owned  photographs  of  Davis, 
Stephens,  Beauregard,  Stonewall  Jackson, 
and  perhaps  a  few  other  leaders  of  the  rebel 


lion.  My  father  gave  them  to  me  before  his 
death,  and  I  prize  them  on  his  account,  if  on 
nobody  else's  I  also  had  in  the  house  pho 
tographs  of  Union  Generals — of  General 
McClellan,  General  Grant,  and  General  Joe 
Hooker. 

The  last  time  I  saw  my  brother  was  on 
Monday,  the  3d  of  April;  I  have  never  seen 
him  since.  He  may  have  been  on  friendly 
terms  with  J.  Wilkes  Booth.  Mr.  Booth 
called  to  see  him  sometimes.  I  never  asked 
him  what  his  friendship  was  to  Booth.  One 
day,  when  we  were  sitting  in  the  parh>r,  Booth 
came  up  the  steps,  and  my  brother  said  he 
believed  that  man  was  crazy,  and  he  wished 
he  would  attend  to  his  own  business  and  let 
him  stay  at  home.  He  told  me  not  to  leave 
the  parlor,  but  I  did. 

Assistant  Judge  Advocate  BURNETT.  Miss 
Surratt,  you  ought  to  be  cautioned  here,  that 
the  statements  or  conversations  of  Mr.  Sur 
ratt,  or  Mr.  Booth,  or  your  mother,  are  not 
competent  testimony.  You  should  state  sim 
ply  what  was  done,  and  not  give  the  state 
ments  of  the  parties;  and  the  counsel  ought 
not  to  ask  for  such  statements. 

Mr.  AIKEN.  [To  witness.]  In  giving  your 
evidence  you  will  avoid  giving  statements 
that  you  heard  your  brother  make,  and  the 
language  he  used.  State  only  what  you 
know,  as  far  as  your  knowledge  goes. 

My  brother  was  at  St.  Charles's  College, 
nea/Ellicott  Mills,  Maryland,  in  1861;  but 
he  was  not  a  student  of  divinity.  He  was 
there,  I  think,  three  scholastic  years,  and 
spent  his  vacations,  in  August,  at  home. 
During  the  time  he  was  not  at  home  for 
vacation  he  was  at  college. 

I  never,  on  any  occasion,  heard  a  word 
breathed  at  my  mother's  house  of  any  plot 
or  conspiracy  to  assassinate  the  President  of 
the  United  States;  nor  have  I  ever  heard 
any  remarks  in  reference  to  the  assassination 
of  any  member  of  the  Government;  nor  did 
I  ever  hear  discussed,  by  any  member  of  the 
family,  at  any  time  or  place,  any  plan  or 
conspiracy  to  capture  the  President  of  the 
United  States. 

My  mother's  eyesight  is  very  bad,  and  she 
has  often  failed  to  recognize  her  friends.  She 
has  not  been  able  to  read  or  sew  by  gaslight 
for  some  time  past.  I  have  often  plagued 
her  about  getting  spectacles,  and  told  her  she 
was  too  young-looking  to  wear  spectacles 
just  yet;  and  she  has  replied  that  she  could 
not  read  or  see  without  them. 

By  MR.  EWING. 

My  brother  left  college  in  1861  or  1862,  the 
year  my  father  died.  I  was  at  school  at 
Bryantown  from  1854  until  1861;  I  left  on 
the  16th  of  July.  Surrattsville,  where  we 
formerly  resided,  is  on  the  road  between 
Washington  and  Bryantown. 

I  never  saw  Dr.  Samuel  Mudd  in  mjr 
mother's  house  in  Washington. 


132 


THE    CONSPIRACY    TRIAL. 


Recalled  for  the  Defense. — June  7. 


By  MR.  AIKEN. 


[Submitting  to  the  witness  the  cai'd  containing  the  arms 
of  the  State  of  Virginia,  with  the  motto  "  Sic  semper 
tyrannis."} 


Recalled  for  the  Defense. — June  9. 


By  MR.  AIKEN. 

I  was  at  communion  with  Mrs.  Surratt  on 
Thursday  morning,  the  13th  of  April.     I  was 
present  at  the  time  of  Payne's  arrest  at  Mrs. 
I  recognize   that   card;    it  belongs  to  me,   Surratt's  house.     I  did  not  recognize  him  at 
and  was  given  me  by  a  lady  about  two  and!  the    house,    but    I    did   at  General   Augur's 

office,  when  the  skull-cap  was  taken  off  his 
head. 


a  half  years  ago. 

By  MR.  EWING. 

We  commenced  moving  from  Surrattsville 
to  the  house  on  II  Street  about  the  1st  of 
October  last;  I  went  there  myself  about  the 
first  week  in  November.  We  have  occupied 
no  other  house  in  Washington. 

I  have  never  seen  Judson  Jarboe  at  our 
house ;  he  never  visited  the  house  at  all.  I 
have  seen  him  pass  in  his  buggy  in  the  coun 
try,  but  I  have  never  seen  him  to  speak  to 
him.  I  never  saw  Dr.  Samuel  Mudd  at  my 
mother's  house  in  the  city,  nor  heard  of  his 
being  there. 

MlSS    IIONORA    FlTZPATRICK. 

For  the  Defense,— May  25. 
By  MR.  AIKEN. 

I  boarded  at  the  house  of  Mrs.  Surratt,  on 
H  Street,  from  the  6th  of  October  last  till  I 
was  arrested.  I  met  the  prisoner  Payne  at 
breakfast  one  morning,  I  think  in  March  or 
April  last.  I  have  seen  him  there  twice; 
the  last  time  was  in  March. 

I  know  the  prisoner.  Atzerodt.  I  have 
seen  him  at  Mrs.  Surratt's,  but  I  do  not  know 
in  what  month.  He  only  stayed  there  a 
short  time;  I  think  Mrs.  Surratt  sent  him 
away.  I  occupied  the  same  room  as  Mrs. 
Surratt,  and  Miss  Surratt  slept  in  the  same 
room  for  a  time. 

[The  picture,  "  Morning,  Noon,  and  Night,"  was  exhib 
ited  to  the  witness.] 

I  know  this  picture ;  it  belonged  to  Miss 
Surratt,  and  was  kept  on  the  mantle-piece, 
but  I  do  not  know  of  any  photograph  placed 
behind  it.  I  bought  a  photograph  of  J. 
Wilkes  Booth,  and  took  it  to  Mrs.  Surratt's 
house;  Miss  Anna  Surratt  also  bought  one. 
The  last  time  I  saw  Mr.  Booth  at  Mrs.  Sur 
ratt's  was  on  the  Monday  before  the  assas 
sination.  John  Surratt  had  left  a  fortnight 
before,  and  I  never  saw  him  after. 

I  am  acquainted  with  Louis  J.  Weichman; 
he  was  treated  in  Mrs.  Surratt's  house  more 
like  a  son  than  a  friend. 

Mrs.  Surratt  has  complained  that  she  could 
!iot  read  or  sew  at  night  on  account  of  her 
sight.  I  have  known  of  her  passing  her 
friend,  Mrs.  Kirby,  on  the  same  side  of  the 
street,  and  not  see  her  at  all. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

The  photographs  of  Stephens,  Beauregard, 
;nd  Davis  did  not  belong  to  me. 


I  know  Mrs.  Surratt's  eyesight  is  defective; 
I  have  often  threaded  a  needle  for  her  when 
she  has  been  sewing  during  the  day,  because 
she  could  riot  see  to  do  it  herself,  and  I  have 
never  known  her  to  sew  or  read  by  gaslight. 
[  never  saw  Judson  Jarboe  until  I  got  ac 
quainted  with  him  at  Carroll  Prison.  I  never 
saw  Dr.  Samuel  Mudd  at  Mrs.  Surratt's 
house,  and  never  heard  his  name  mentioned 
there. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

When  we  were  at  General  Augur's  head 
quarters,  Mrs.  Surratt  was  taken  in  another 
room.  Payne  was  down  behind  the  railing, 
in  the  room  in  which  Miss  Surratt,  Miss 
Jenkins,  and  myself  were.  The  only  time 
that  Mrs.  Surratt  was  in  the  room  with  us 
was  when  Miss  Surratt  gave  way  to  her  feel 
ings,  because  some  one  suggested  that  this 
man  Payne  was  her  brother,  John  H.  Surratt 
I  do  not  remember  that  Mrs.  or  Miss  Surratt 
said  there  that  they  had  never  seen  that 
man  before.  Miss  Surratt  remarked  that 
that  ugly  man  was  not  her  brother,  and  she 
thought  whoever  called  him  so  was  no  gen 
tleman.  He  had  his  cap  off  at  that  time.  I 
did  not  hear  her  deny  that  she  had  ever  seen 
him. 

I  do  not  remember  whether  the  officers 
called  Mrs.  Surratt  out  to  see  Payne  at  the 
time  of  his  arrest  at  the  house;  I  remained 
in  the  parlor  all  the  time. 

MRS.  ELIZA  HOLAHAN 

For  the  Defense.— May  25. 

By  MR.  AIKEN. 

I  boarded  with  Mrs.  Surratt  from  the  Tth 
of  February  until  two  days  after  the  assas 
sination.  I  know  the  prisoner  at  the  bar 
who  called  himself  "Wood,"  [Payne;]  I 
saw  him  at  Mrs.  Surratt's  in  February,  and 
the  second  time,  I  think,  about  the  middle  of 
March.  He  was  introduced  to  me  as  Mr. 
Wood,  but  I  never  exchanged  a  word  with 
him  on  either  visit.  I  asked  Miss  Anna  Sur 
ratt  who  he  was,  and  she  said  he  was  a  Mr. 
Wood,  a  Baptist  minister.  I  said  I  did  not 
think  he  would  convert  many  souls;  he  did 
not  look  as  if  he  would.  FTe  was  there  but 
one  night  on  his  first  visit,  and  on  the  sec 
ond,  two  or  three  days,  I  think;  it  was  after 
the  inauguration.  I  have  seen  the  prisoner 
Atzerodt  at  Mrs.  Surratt's,  though  I  never 


DEFENSE    OF   MRS.  MART   E.   SURRATT. 


133 


heard  of  him  by  that  name;  he  called  him 
self,  and  the  young  ladies  called  him,  "  Port 
Tobacco."  I  saw  him  come  in  at  times,  and 
he  dined  there  once  or  twice.  I  heard  Mrs. 
Surratt  say  she  objected  to  Mr.  Atzerodt;  she 
did  not  like  him,  and  that  she  would  rather 
he  did  not  come  there  to  board.  I  can  not 
say  that  I  was  intimate  with  Mrs.  Surratt; 
I  liked  her  very  much;  she  was  a  very  kind 
lady  to  board  with ;  but  I  was  more  intimate 
with  her  daughter  than  I  was  with  her. 

Q.  In  all  the  time  you  boarded  in  her 
house  did  you  ever  hear. Mrs.  Surratt  say  any 
thing  with  reference  to  the  existence  of  a 
conspiracy  to  assassinate  the  President? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  The  law  so  hedges 
about  this  matter  of  crime  that  those  who  are 
charged  with  it  are  never  permitted  to  prove 
their  own  declarations  in  their  own  favor,  be 
cause,  if  it  were  so,  the  greatest  criminal  that 
ever  cursed  the  earth  and  disgraced  our  com 
mon  humanity  could  make  an  abundant 
amount  of  testimony  out  of  the  mouth  of  the 
most  truthful  people  living. 

Mr.  AIKEN  replied,  that  if  the  witness  had 
heard  Mrs.  Surratt  make  any  remarks  with 
reference  to  a  conspiracy,  and  disclosed  to  her 
any  knowledge  of  that  fact,  it  would  be  val 
uable  evidence  on  the  part  of  the  Government, 
and  it  would  be  just  as  valuable  to  tire  defense 
if  she  did  not. 

The  question  was  waived. 

I  have  seen  John  Wilkes  Booth  at  Mrs. 
Surratt's  three  or  four  times.  When  he  called, 
he  spent  most  of  his  time  in  company  with 
Mrs.  Surratt,  I  believe ;  he  would  ask  for  Mr. 
John  Surratt,  as  I  understood;  if  he  was  not 
there,  for  Mrs.  Surratt. 

Mrs.  Surratt's  eyesight  was  defective.  I 
never  saw  her  read  or  sew  after  candlelight. 
I  went  to  Church  with  Mrs.  Surratt  during 
Lent  very  often ;  she  was  very  constant  in 
her  religious  duties. 

I  have  not  seen  John  Surratt  since  early 
in  March,  when  he  was  last  at  home. 

GEORGE  B.  WOODS. 
vor  the  Defense. — May  25. 

I  reside  in  Boston.  I  have  been  in  the 
habit  of  seeing,  in  Boston,  photographs  of 
the  leaders  of  the  rebellion  exposed  for  sale, 
the  same  as  Union  celebrities. 

Q.  Have  you  not  seen  them  in  the  pos 
session  of  persons  supposed  to  be  loyal  ? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question  as  immaterial. 

Mr.  AIKEN  waived  the  question. 

AUGUSTUS  S.  HOWELL. 
For  the  Defense.— May  27. 

My  name  is  Augustus  Howell.  I  first  be 
came  acquainted  with  Mrs.  Surratt  and  John 
H.  Surratt  about  a  year  and  a  half  ago,  atSur- 


rattsville.  I  was  present  one  evening,  when 
she  banded  me  a  newspaper  to  read  for  her; 
and  I  called  one  evening  at  her  house,  about 
the  20th  of  February,  and,  although  the  gas 
was  lit  in  the  hall,  she  failed  at  first  to 
recognize  me 

I  met  Louis  J.  Weichman  once  at  Mrs 
Surratt's ;  I  remained  there  two  days  or  more. 
I  had  no  particular  business,  and  I  went  to 
Mrs.  Surratt's  because  I  knew  them,  and 
because  it  was  cheaper  than  at  an  hotel. 

When  I  saw  Mr.  Weichman  I  showed  him 
a  cipher,  and  how  to  use  it.  Weichman  then 
made  one  himself. 

[The  cipher  found  among  Booth's  effects  was  exhibited 
to  the  witness.] 

The  cipher  I  showed  to  Mr.  Weichman 
was  the  same  as  this. 

Q.  Did  Mr.  Weichman  at  that  time  give 
you  any  information  in  regard  to  the  num 
ber  of  prisoners  that  we  had  on  hand? 

Assistant  Judge  Advocate  BINGHAM  objected 
to  the  question,  inasmuch  as  Mr.  Weichr^an 
was  never  asked  any  question  in  relation  to 
that  matter  in  his  cross-examination. 

The  question  was  waived. 

I  had  some  conversation  with  Mr.  Weich 
man  with  respect  to  his  going  South;  he 
said  he  would  like  to  go  South,  or  intended 
to  go  South. 

Q.  Did  he  say  any  thing,  in  connection 
with  his  wishes  to  go  South,  of  his  sympa 
thies  ? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question,  inasmuch  as  Mr. 
Weichman  had  not  been  asked,  on  his  cross- 
examination,  whether  he  had  stated  any  thing 
to  Mr.  Howell  about  his  sympathies  at  that 
time  and  place. 

The  question  was  waived. 

Mr.  Weichman  said  he  would  like  to  go 
South  with  me,  but  he  was  not  ready,  he  said, 
to  go  at  that  time;  but  as  soon  as  he  got  his 
business  arranged  he  was  going.  He  asked 
me  if  I  thought  he  could  get  a  position  in' 
Richmond  ;  I  told  him  I  did  not  know  whether 
he  could  or  not,  as  the  wounded  and  invalid 
soldiers  generally  had  the  preference  in  the 
offices  there  by  an  order  of  the  War  Depart 
ment.  He  told  me  that  his  sympathies  were 
with  the  South,  and  that  he  thought  it  would 
ultimately  succeed.  I  believe  he  said  he  had 
done  all  he  could  for  that  Government — re 
ferring  to  the  South.  We  had  some  conver 
sation  in  regard  to  the  number  of  prisoners 
on  hand,  and  he  stated  to  me  the  number  of 
Confederate  prisoners  the  United  States  Gov 
ernment  had  on  hand,  and  the  number  they 
had  over  that  of  the  Confederate  Government. 
I  doubted  it  at  the  time,  but  he  said  it  would 
not  admit  of  doubt;  that  he  had  the  books 
in  his  own  office  to  look  at. 

In  that  conversation,  I  think,  Mr.  Weich 
man  said  he  had  done  all  he  could  for  the 
South;  he  expressed  himself  as  a  friend  of 
the  South,  as  a  Southern  man  or  a  secesh 
sympathizer  would. 


134 


THE    CONSPIRACY   TRIAL. 


Gross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BURNETT. 

Before  the  war,  I  resided  principally  in 
Prince  George's  County,  Md. ;  for  about  two 
years,  off  and  on,  I  have  lived  in  King 
George  County,  Va. 

Q.  What  has  been  your  business  for  the 
last  year  and  a  half? 

Mr.  AIKEN.  I  object  to  the  question.  In 
the  examination  in  chief,  the  witness  was 
asked  nothing  at  all  with  reference  to  his 
business,  one  way  or  the  other.  I  do  not 
object  to  his  stating  it,  if  he  wishes  to  do  so, 
but  I  do  not  think  it  is  relevant. 

Assistant  Judge  Advocate  BURNETT.  The 
Court  has  the  right  to  know  the  status  of  the 
witness.  We  have  a  right  to  know  whether 
his  employment  was  loyal  or  disloyal,  and 
whether  that  fact  was  known  to  the  family 
of  Surratts.  It  is  always  competent  to  give 
to  the  Court  the  full  status  of  the  witness 
during  the  time  about  which  he  testifies.  It 
is  but  the  ordinary  course  of  cross-examina 
tion. 

General  WALLACE.  I  should  like  to  hear 
the  reason  of  the  objection. 

Mr.  AIKEN.  It  is  objected  to,  first,  because 
no  question  was  asked  the  witness  in  the  ex 
amination  in  chief,  in  reference  to  what  his 
business  has  been  ;  and,  secondly,  because  it 
is  entirely  irrelevant  to  the  issue  now  before 
us,  in  every  way  and  shape. 

The   Commission  overruled  the  objection. 

Mr.  AIKEN.  I  now  object  to  the  witness 
answering  the  question.  He  is  not  obliged 
to  do  so,  if  his  answer  will  tend  in  any  way  to 
criminate  himself  as  to  any  thing  in  which 
he  has  been  engaged;  and  if  he  does  not 
wish  to  answer  the  question,  he  has  the  privi 
lege  not  to  do  it 

Assistant  Judge  Advocate  BURNETT.  If  it 
is  placed  on  the  ground  of  personal  security, 
if  the  witness  claims  that  privilege  at  the 
hands  of  the  Court,  he  can  make  that  claim, 
and  I  will  not  press  that  portion  of  the  ques 
tion.  [To  the  witness.]  It  is  your  right,  and 
I  apprise  you  of  it  now,  to  claim  protection  at 
the  hands  of  the  Court  against  any  matter 
that  will  criminate  yourself. 

WITNESS.  I  have  had  no  particular  occu 
pation  since  I  came  out  of  the  Confederate 
army.  I  was  in  the  First  Maryland  Artillery 
of  the  Confederate  service,  during  the  first 
year  of  the  war,  up  to  July,  1862,  I  believe. 
Since  then  I  have  not  been  employed  in  any 
particular  business.  I  have  been  to  Rich 
mond  occasionally.  Sometimes  I  went  once 
a  month,  sometimes  once  in  two  or  three 
months.  I  do  not  think  I  have  been  but 
twice  the  last  year.  I  was  there  in  Decem 
ber,  and  again  in  February,  I  think.  Some 
one  might  have  gone  with  me  in  December, 
but  I  do  not  remember  who  it  was.  In  Feb 
ruary,  some  half  dozen  accompanied  me,  but 
they  were  principally  from  the  neighborhood 
in  the  county.  I  had  no  particular  business 


in  Richmond  but  to  see  some  friends,  and  to 
get  some  drafts.  Our  Maryland  boys  gen 
erally  sold  drafts,  and  I  used  to  go  down 
to  Richmond  occasionally  to  buy  drafts  for 
them. 

Q.  On  whom  did  you  buy  drafts? 

A.  That  would  be  implicating  others,  and 
I  do  not  wish  to  answer  that  question. 
Any  thing  relative  to  myself  I  will  answer 
willingly. 

Assistant  Judge  Advocate  BURNETT.  Pro 
tection  on  the  stand  only  applies  to  yourself, 
not  to  others. 

WITNESS.  They  were  upon  some  of  my 
friends  in  Maryland.  They  were  not  upon 
any  of  the  accused,  or  any  person  in  Wash 
ington.  I  never  carried  any  dispatches  in 
my  life. 

I  have  been  at  Richmond  about  half  a 
dozen  times  since  I  have  known  the  Surratts. 
I  can  not  say  that  I  was  known  to  my 
friends  as  a  blockade-runner. 

My  name  is  Augustus  Howell ;  that  is  my 
correct  name.  I  generally  write  my  name 
A.  S.  Howell.  "S"  stands  for  Spencer.  My 
friends  call  me  Spencer,  but  I  seldom  use 
the  "S"  in  my  name. 

The  cipher  I  showed  to  Weichmann  I 
learned  out  of  a  magician's  book.  I  have 
been  acquainted  with  it  for  six  or  seven 
years. 

I  never  met  a  person  by  the  name  of  Mrs. 
Slater  at  Mrs.  Surratt's  house.  I  met  a  lady 
by  that  name  in  Washington,  about  the  20th 
or  22d  of  February,  and  had  some  conver 
sation  with  her  in  front  of  Mrs.  Surratt's  house. 
We  went  to  Virginia  together.  John,  H.  Sur- 
ratt  was  with  her  in  the  buggy.  I  met  Mrs. 
Slater  in  Richmond  about  the  last  of  Feb 
ruary.  It  was  soon  after  I  saw  her  in  front 
of  Mrs.  Surratt's  house,  that  I  met  her  in 
Richmond. 

I  staid  about  two  days  and  a  half  at  Mrs. 
Surratt's  in  February.  I  told  them  that  I 
had  been  to  Richmond.  I  do  not  know  that 
they  knew  my  business.  I  had  some  con 
versation  with  Mrs.  Surratt,  and  judged  she 
knew  I  was  from  Richmond.  I  think  Atze- 
rodt  was  at  Mrs.  Surratt's  house  during  the 
time  I  was  there,  but  I  never  saw  Payne. 

I  used  to  meet  Dr.  Mudd  occasionally, 
when  I  was  at  Bryantown.  He  never  sent 
messages  by  me  to  Richmond,  nor  did  I 
bring  any  back  to  him.  I  was  at  his  house 
about  a  year  ago,  but  never  made  it  a  stop 
ping-place.  I  had  lost  a  pistol  which  I  left 
at  a  house  in  Bryantown,  and  I  asked  him 
to  go  there  and  get  it  for  me,  but  he  did  not. 
I  was  going  up  into  the  country,  and  did  not 
miss  the  pistol  until  I  was  passing  Dr.  Mudd'a 
place.  It  was  because  his  house  was  tjie 
nearest  that  I  went  in  and  asked  him  to  get 
it  for  me. 

I  brought  one  draft  from  Richmond,  from 
young  Marriott,  in  Prince  George's  County, 
Maryland,  for  his  sister,  of  $200,  and  for  which 
I  paid  at  the  rate  of  $800  of  Confederate  for 


DEFENSE   OF  MRS.  MARY  E.  SURRATT. 


135 


$100  of  United  States  money.  Another  from 
young  Tolson,  which  I  have  not  yet  collected, 
and  another  from  a  young  man  by  the  name 
of  Chew,  on  his  brother  in  Anne  Arundel 
County. 

I  do  not  know  any  thing  of  Weichman's 
having  quarreled  with  the  Surratt  family, 
because  he  was  loyal  and  they  were  disloyal, 
nor  did  I  know  that  it  was  his  intention  to 
glean  from  me  all  I  knew  for  the  purpose  of 
turning  me  over  to  the  military  authorities; 
if  so,  he  did  not  succeed.  I  never  took  the 
oath  of  allegiance  to  the  Unit  id  States. 

By  MR.  EWING. 

I  frequently  saw  Dr.  Mudd  at  Bryantown 
before  the  war.  I  have  never  had  any  com 
munication  with  him,  except  in  regard  to  that 
pistol.* 

Miss  ANNA  WARD. 

For  the  Defense. — June  3. 

By  MR.  AIKEN. 

I  reside  at  the  Female  [Catholic]  School, 
on  Tenth  Street,  Washington.  I  have  been 
acquainted  with  Mrs.  Surratt  between  six  and 
eight  years.  I  know  Mrs.  Surratt's  eyesight 
to  be  defective;  she  has  failed  to  recognize 
me  on  the  street.  On  one  occasion,  at  her 
house,  I  gave  her  a  letter  to  read,  and  she 
handed  it  back,  saying  she  could  not  see  to 
read  by  gaslight.  I  am  near-sighted  myself. 
On  one  occasion  something  was  pointed  out 
to  me,  and  I  was  laughed  at  for  not  seeing 
it,  as  it  was  pretty  close  by,  and  Mrs.  Surratt 
remarked  that  she  supposed  I  was  something 
like  herself;  I  could  not  see ;  and  that  she 
labored  under  the  same  difficulty. 

I  have  not  been  very  intimate  with  Mrs. 
Surratt.  She  always  bore  the  character  of  a 
perfect  lady  and  a  Christian,  as  far  as  my  ac 
quaintance  with  her  extended. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

My  last  visit  to  Mrs.  Surratt's  house  was  on 
the  day  of  the  assassination.  Some  time  in 
February  or  March,  perhaps,  I  went  to  the 
Herndon  House  to  ask  if  there  was  a  vacant 
room.  I  did  not  engage  a  room;  I  simply 
went  there  to  ask  if  there  was  a  vacant  room. 
I  said  nothing  about  its  being  for  a  delicate 
gentleman,  for  1  did  not  known  for  whom  it 
was  intended.  I  have  met  Mr.  Weichman; 
Mr.  Holahan,  and  Mr.  Booth  at  Mrs.  Surratt's, 
but  do  not  know  that  I  ever  met  any  of  the 
prisoners  at  the  bar  there.  I  can  not  see  them 
well  enough  to  know  them,  but  do  not  think 
I  have. 

I  received  two  letters  from  John  H.  Sur 
ratt,  post-marked  Montreal,  C.  E.,  for  his 
mother.  I  do  not  recollect  the  date  of  the 
first  I  received ;  it  was  probably  one  or  two 


*  We  can  not  present  the  contradictions  and  prevarica 
tions  of  this  witness  without  occupying  many  pages.  In 
each  case  we  give  his  last  statements,  many  of  them  flatly 
contradicting  those  made  &  few  moments  before. 


days  before  the  second,  and  that  I  received 
on  the  day  of  the  assassination ;  it  was  that 
which  took  me  to  Mrs.  Surratt's  on  that  day. 
He  inclosed  them  in  letters  to  me.  I  answered 
his  letters  to  me,  and  left  them  with  his  mother, 
as  I  supposed  she  would  be  glad  to  hear  from 
him.  I  have  not  seen  them  since. 

KEY.  B.  F.  WIGET. 

For  the  Defense. — May  25. 

By  MR.  AIKEN. 

I  am  President  of  the  Gonzaga  College,  F 
Street,  between  Ninth  and  Tenth.  It  is  about 
ten  or  eleven  years  since  I  became  acquainted 
with  Mrs.  Mary  E.  Surratt.  I  knew  her  well, 
and  I  have  always  heard  every  one  speak  very 
highly  of  her  character  as  a  lady  and  as  a 
Christian.  During  all  this  acquaintance,  noth 
ing  has  ever  come  to  my  knowledge  respecting 
her  character  that  could  be  called  unchristian. 

Q.  Is  there  an  institution  in  the  city  of  Rich 
mond  for  theological  studies? 

Assistant  Judge  Advocate  BINGHAM.  I  ob 
ject  to  that  question  as  wholly  immaterial. 
What  is  the  necessity  of  inquiring  into  that? 
You  might  as  well  ask  whether  it  was  an 
octagon  or  not;  whether  it  was  two  .stories 
or  forty  stories  high.  If  immaterial  questions 
were  allowed  to  be  asked  and  answers  ob 
tained,  and  the  witnesses  contradicted,  the 
case  would  never  end,  if  the  Court  lived  to  be 
as  old  as  Methusalah,  provided  a  succession 
of  counsel  could  be  obtained  to  keep  up  the 
fire.  Wharton's  American  Criminal  Law,  p. 
434,  section  817,  says:  "The  credit  of  a  wit 
ness  may  be  impeached  by  proof  that  he  has 
made  statements  out  of  court  contrary  to  what 
he  has  testified  at  the  trial.  But  it  is  only  in 
such  matters  as  are  relevant  to  the  issue  that 
the  witness  can  be  contradicted.  Therefore, 
a  witness  can  not  be  examined  as  to  any  dio- 
tinct  collateral  fact  irrelevant  to  the  issue  for 
the  purpose  of  impeaching  his  testimony  after 
ward  by  contradicting  his  statements." 

Mr.  AIKEN  said  he  would  recall  the  recol 
lection  of  the  learned  Assistant  Judge  Advo 
cate  to  the  fact  that  the  answer  of  Mr.  Weich- 
man  was  on  the  record  that  he  was  a  stu 
dent  of  divinity,  and  that  he  desired  to  go  to 
Richmond  to  continue  his  studies  there.  Mr. 
Weichman  was  interrogated  as  to  these 
points,  and  the  foundation  was  thus  laid  for 
impeaching  his  credibility  as  a  witness. 
These  questions  to  the  witness  now  on  the 
stand  (which  I  have  a  right  to  put)  are  for 
that  very  purpose. 

General  WALLACE.  The  witness  Weichman 
did  not  state  that  there  was  a  theological 
academy,  or  any  thing  of  that  kind,  in  Rich 
mond. 

Mr.  AIKEN.  He  said  that  he  belonged  to 
that  diocese,  and  wanted  to  go  to  that  diocese 
to  finish  his  studies. 

The  Judge  Advocate.  He  said  nothing 
about  a  theological  school  there.  He  said  he 


136 


THE    CONSPIRACY   TRIAL. 


wished  to  go  there  for  the  purpose  of  continu 
ing  his  theological  studies. 

Mr.  AIKEN.  The  inference  was,  if  he  was 
going  to  complete  his  theological  studies,  tha 
there  was  a  school  there. 

Assistant  Judge  Advocate  BINGHAM.  You 
do  not  propose  to  contradict  inferences  I  sup 
pose  ? 

The  Commission  sustained  the  objection. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  have  a  personal  knowledge  of  her  gen 
eral  character  as  a  Christian,  but  not  of  her 
character  for  loyalty.  My  visits  were  all 
short,  and  political  affairs  were  never  dis 
cussed;  I  was  not  her  pastor.  I  first  became 
acquainted  with  Mrs.  Surratt  from  having 
had  two  of  her  eons  with  me.  I  have  seen 
her  perhaps  once  in  six  weeks.  I  can  not  say 
I  remember  hearing  her  utter  a  loyal  senti 
ment  since  the  beginning  of  the  rebellion; 
nor  do  I  remember  hearing  any  one  talk  about 
her  as  being  notoriously  disloyal  before  her 
arrest. 

REV.  FRANCIS  E.  BOYLE. 

For  the  Defense.— May  25. 

By  MR.  AIKEN. 

I  am  a  Catholic  priest.  My  residence  is  at 
St.  Peter's  Church.  I  made  the  acquaintance 
of  Mrs.  Mary  E.  Surratt  eight  or  nine  years 
ago,  and  have  met  her  perhaps  three  or  four 
times  since.  I  have  heard  her  always  well 
epoken  of  as  an  estimable  lady,  and  never 
heard  any  thing  to  her  disadvantage.  I  have 
never  heard  her  utter  any  disloyal  sentiments. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  have  never  heard  much  of  her  sentiments, 
and  do  not  undertake  to  say  what  her  reputa 
tion  for  loyalty  is. 

REV.  CHARLES  H.  STONESTREET. 

For  the  Defense. — May  25. 

By  MR.  AIKEN. 

I  am  the  pastor  of  St.  Aloysius  Church  in 
this  city.  I  first  became  acquainted  with 
Mrs.  Mary  E.  Surratt  twenty  years  ago.  I 
have  only  occasionally  seen  her  since.  Dur 
ing  the  last  year  or  two,  I  have  scarcely  seen 
her.  I  have  always  looked  upon  her  as  a 
proper  Christian  matron.  At  the  time  of  my 
acquaintance  with  her,  there  was  no  question 
of  her  loyalty. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  do  not  remember  having  seen  Mrs.  Sur 
ratt,  though  I  may  have  done  so  transiently, 
since  the  commencement  of  the  rebellion  ; 
and  of  her  character  for  loyalty  since  then 
I  know  nothing  but  what  I  have  read  in  the 
papers. 


REV.  PETER  LANIHAN. 

For  the  Defense.— May  26. 

By  MR.  AIKEN. 

I  am  a  Catholic  priest,  and  reside  near 
Beantown,  St.  Charles  County,  Maryland.  I 
have  been  acquainted  with  Mrs.  Mary  E. 
Surratt,  the  prisoner  at  the  bar,  for  about 
thirteen  years;  intimately  so  for  about  nine 
years.  In  my  estimation,  she  is  a  good 
Christian  woman,  and  highly  honorable.  I 
never  heard  her  on  any  occasion  express 
disloyal  sentiments. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BINGHAM. 

Mrs.  Surratt's  character  in  her  neighbor 
hood  is  that  of  a  good  Christian  woman.  1 
have  conversed  with  her  since  the  rebellion 
in  regard  to  current  events  and  public  affairs, 
and  do  not  remember  having  heard  any 
expression  of  disloyal  sentiments,  and  I  have 
been  very  familiar  with  her,  staying  at  her 
house.  I  do  not  remember  having  heard  her 
reputation  for  loyalty  spoken  of. 

REV.  N.  D.  YOUNG. 

For  the  Defense. — May  26. 

By  MR.  AIKEN. 

I  am  a  Catholic  priest;  I  reside  at  the 
pastoral  house  of  St.  Dominick's  Church,  on 
Lhe  Island,  on  Sixth  Street,  in  Washington 

ity.  I  became  acquainted  with  Mrs.  Mary 
E.  Surratt  about  eight  or  ten  years  ago.  My 
acquaintance  has  not  been  intimate.  I  have 
occasionally  seen  her  and  visited  her.  I  had 
to  pass  her  house  about  once  a  month,  and 

enerally  called  there — sometimes  staid  an 
hour.  Her  reputation,  as  far  as  I  have 
leard,  is  that  of  a  Christian  lady,  in  every 
sense  of  the  word.  I  have  heard  her  spoken 
of  with  the  greatest  praise,  and  never  heard 
any  thing  of  her  but  what  was  highly  favor 
able  to  her  character.  She  never  expressed 
any  disloyal  sentiments  to  me. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  never  heard  her  speak  upon  current 
events  in  any  manner,  loyal  or  disloyal. 

WILLIAM  L.  HOYLE. 

For  the  Defense.— May  26. 
By  MR.  AIKEN. 

I  reside  on  Missouri  Avenue,  Washington. 
"  am  not  particularly  acquainted  with  Mrs. 
Surratt.  I  have  a  store  acquaintance  only ; 
'.  know  nothing  of  her,  and  have  heard 
lothing  against  her.  I  never  heard  her 
jxpress  any  disloyal  sentiments  ;  I  never  had 
my  political  conversation  with  her. 

I  know  John  II.  Surratt  by  sight.  I  last 
aw  him  in  this  city  about  the  end  of  Feb- 
uary  or  the  beginning  of  March.  Just 


DEFENSE  OF  MRS.  MARY  E.  SURRATT 


137 


prior  to  the  draft  I  saw  him  in  the  store.  In 
appearance  he  is  rather  delicate  looking; 
Uill,  about  six  feet  in  hight,  of  light  complex 
ion,  and  about  twenty-two  or  twenty-three 
years  of  age.  I  think  he  had  neither  goatee 
nor  moustache  when  I  saw  him,  though  i 
will  not  be  positive. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  never  heard  Mrs.  Surratt  utter  any  polit 
ical  sentiment,  loyal  or  disloyal ;  it  was  only 
as  a  customer  that  I  knew  her. 

JOHN  T.  HOXTON. 

For  the  Defense. — June  13. 
By  MR.  AIKEN. 

I  have  resided  in  Prince  George's  County, 
Maryland,  about  a  mile  from  Surrattsville, 
for  the  last  forty-five  or  fifty  years.  I  have 
known  Mrs.  Mary  E.  Surratt  for  a  number 
of  years,  but  mostly  since  she  came  to  reside 
in  our  neighborhood,  about  ten  or  twelve 
years  ago.  Since  the  rebellion  I  have  not 
met  her  very  frequently.  Of  late  years  I 
have  gone  from  home  but  little;  I  have  not 
visited  her  house  often,  and  when  there  I 
have  staid  but  a  short  time.  I  never  had 
any  conversation  with  her  on  political  sub 
jects.  Her  reputation  in  the  neighborhood, 
as  a  truthful,  Christian,  kind  lady,  is  very 
good,  I  believe.  I  never  heard  any  thing  to 
the  contrary. 

I  am  very  well  acquainted  with  J.  Z. 
Jenkins.  He  was  a  good  Union  man  up  to 
1862>  I  think.  At  the  election  of  that  year 
he  was  arrested,  and  since  then  I  have  under 
stood  that  he  had  secession  proclivities.  I 
believe  that  he  once  assisted  in  defending  the 
Union  flag  with  arms  in  his  hands.  Mr. 
Jenkins  was  a  good  Union  man  two  years 
ago,  but  I  have  known  very  little  of  him 
since  that  time.  The  report  in  the  neighbor 
hood  is,  that  he  is  not  at  this  time  a  very 
loyal  man.  I  have  never  known  of  Mr. 
Jenkins  committing  a  disloyal  act,  nor  have 
I  heard  from  him  an  expression  unfriendly 
to  the  Government,  during  the  past  two  years. 

I  know  the  Rev.  W.  A.  Evans.  There  is 
no  Presbyterian  Church  in  Prince  George's 
County  that  I  know  of.  J  can  not  exactly 
say  what  is  the  reputation  of  Mr.  Evans  in 

Mr.  Evans 

You 


that  neighborhood  for  veracity, 
was  impeached  some  years  ago. 

Assistant  Judge  Advocate  BINGHAM. 
need  not  state  that. 

Q.  From  your  knowledge  of  his  character 
and  his  reputation,  would  you  believe  him 
on  oath  where  any  of  his  interests  were 
involved? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  The  witness  should 
first  state  whether  he  knew  the  general  repu 


tation  of    Mr.  Evans  for 
neighbors. 


truth    among    his 


Q.  Are  you  acquainted  with  the  reputation 


of  the  Rev.  Mr.  Evans  in  your  community— 
in  your  neighborhood  ? 
A.  No,  except  by  rumor. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Q.  In  Evans's  neighborhood? 
A.   Evans  kept  school  in  the  neighborhood 
where  I  live,  some  ten  or  twelve  years  ago. 
Q.   The  question  is  as  to  his  reputation  now. 
A.  I  know  nothing  of  his  reputation  now. 

By  MR.  AIKEN. 

Q.  Has  his  reputation  in  his  neighborhood, 
and  where  he  has  taught  school,  been  noto 
riously  bad? 

Assistant  Judge  Advocate  BIXGHAM.  I 
object  to  any  such  question.  The  witness 
has  disclosed  the  fact  that  he  does  not  know 
what  the  present  reputation  of  Mr.  Evans 
among  his  own  neighbors  for  truth  and  verac 
ity  is.  The  law,  in  its  humanity  and  in  its 
justice,  has  said  that  no  man  called  into  a 
court  as  a  witness  shall  be  put  upon  trial  for 
every  act  of  his  life;  the  question  is  as  to  his 
general  reputation  at. the  time  he  appears  as 
a  witness.  Now  it  is  proposed  to  go  back 
ten  years.  It  is  supposed  in  law  that  in  ten 


years  a  man  can  live  down  a  slander. . 
The  question  was  waived. 
[See  testimony  of  Eev.  W.  A.  Evans,  page  174.] 

WILLIAM  W.  HOXTON. 

For  the  Defense.— June  13. 

By  MR.  AIKEN. 

I  reside  about  a  mile  from  Surra tlsville, 
in  Prince  George's  County,  Md.  I  have 
known  Mrs.  Surratt,  the  prisoner  at  the  bar, 
for  about  twelve  years.  She  has  always  been 
looked  upon  as  a  very  kind  lady — to  the  sick 
especially — and  a  church-going  woman.  I 
have  seen  her  very  often  during  the  last  four 
or  five  years,  and  never  heard  her  utter  a 
disloyal  word. 

I  am  acquainted  with  J.  Z.  Jenkins;  he 
lives  about  a  mile  and  a  half  from  me.  He 
was  the  strongest  Union  man  I  ever  saw  when 
the  war  broke  out;  but  I  have  heard  that  he 
changed  when  he  lost  his  negroes,  though  I 
never  heard  him  say  any  thing  disloyal  when 
he  lost  them,  and  I  have  never  heard  of  any 
disloyal  or  overt  act  of  his  against  the  Gov 
ernment. 

RACHEL  SEMUS  (colored.) 

For  the  Defense. — June  13. 

By  MR.  AIKEN. 

I  have  lived  at  Mrs.  Surratt's  house  for  six 
years;  was  hired  to  her  by  Mr.  Wildman. 
She  treated  her  servants  very  well  all  the  time 
I  was  with  her ;  I  never  had  reason  to  com 
plain.  I  remember  Mrs.  Surratt  has  fed 
Union  soldiers  at  her  house,  sometimes  a 
good  many  of  them;  and  I  know  that  she 
always  tried  to  do  the  best  for  them  that  she 
could,  because  I  always  cooked  for  them 


138 


THE    CONSPIRACY    TRIAL. 


She  always  gave  them  the  best  she  had, 
and  very  often  she  would  give  them  all  she  had 
in  the  house,  because  so  many  of  them  came. 
I  recollect  her  cutting  up  the  last  ham  she 
had  in  the  house,  and  she  had  not  any  more 
until  she  sent  to  the  city.  1  never  knew  of 
her  taking  any  pay  for  it.  I  never  heard  her 
express  herself  in  favor  of  the  South ;  if  she 
used  such  expressions,  I  did  not  hear  them. 
Her  eyesight  has  been  failing  for  a  long  time  ; 
very  often  I  have  had  to  go  up  stairs  and 
thread  her  needle  for  her  because  she  could  not 
see  to  do  it;  I  have  had  to  stop  washing  to  go 
up  and  thread  it  for  her  in  the  day-time.  I 
remember  one  day  telling  her  that  Father 
Lanihan  was  at  the  front  gate,  coming  to  the 
house,  and  she  said,  "  No,  it  was  not  him,  it 
was  little  Johnny" — meaning  her  son. 

DAVID  C.  HEED. 

Recalled  for  the  Defense. — June  3. 
By  MR.  AIKEX. 

The  last  time  I  saw  John  H.  Surratt  was 
about  half-past  2  o'clock  on  the  day  of  the 
assassination,  the  14th  of  April  last.  I  was 
standing  on  the  stoop  of  Hunt  &  Goodwin's 
military  store,  and  Mr.  Surratt  was  going 
past  the  National  Hotel.  I  noticed  his  hair 
was  cut  very  singularly,  rounding  awav  down 


on  his  coat-collar.  I  did  not  notice  whether 
he  had  whiskers  or  moustache,  as  I  was  more 
attracted  by  the  clothing  he  had  on.  His 
appearance  was  very  genteel,  remarkably  so. 
He  did  not  look  like  a  person  just  from  a 
long  journey;  his  clothing  was  clean,  and 
remarkably  nice  and  genteel.  I  can  riot  say 
that  I  have  had  any  connection  with  Mr. 
Surratt  since  he  was  quite  a  child;  I  knew 
him  by  sight,  and  we  had  just  a  bowing  or 
speaking  acquaintance  as  we  passed  each 
other. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

[A  recent  and  large-sized  photograph  of  John  II.  Surratt 
was  handed  to  the  witness.! 

This  is  a  fair  picture  of  John  H.  Surratt; 
the  only  thing  I  notice  is  that  his  hair  is  not 
cut  as  I  noticed  his  on  the  14th  of  April,  but 
the  shape  of  the  coat,  the  style  in  which  it  is 
cut,  is  precisely  the  same. 

By  MR.  AIKEN 

If  that  picture  had  been  shown  to  me  with 
out  being  told  it  was  the  picture  of  Mr.  Sur 
ratt,  I  do  not  know  that  I  should  recognize  it, 
if  I  saw  it  hanging  in  a  window;  but  if  I 
looked  at  it  and  examined  it,  I  should  recog 
nize  it  as  John  H.  Surratt.  It  is  a  remark 
able  face. 


TESTIMONY  IN  REBUTTAL. 


JOHN  RYAN. 
For  the  Prosecution. — June  7. 

I  have  known  Louis  J.  Weichman  about  a 
year,  not  perhaps  intimately,  but  he  lias  been 
quite  friendly  and  communicative  in  his  con 
versation  with  me.  As  far  as  my  knowledge 
goes,  he  has  always  borne  a  good  character 
as  a  moral  young  man,  and  I  know  nothing 
against  his  character  for  truth.  I  do  not  be 
lieve  he  would  tell  a  falsehood,  and  I  would 
believe  him  whether  under  oath  or  not. 

As  regards  his  loyalty,  I  only  remember 
one  conversation  that  distinctly  bore  on  that 
question,  and  from  that  conversation  my  im 
pression  was  that  he  rejoiced  at  the  restora 
tion  of  the  Union.  I  have  no  recollection 
of  his  ever  expressing  sentiments  that  left  a 
contrary  impression  on  my  mind. 

Cross-examined  by  MR.  AIKEN. 

I  was  not  a  visiting  friend  of  Mr.  Weich 
man;  our  meetings  were  casual.  I  am  a 
clerk  in  the  War  Department,  but  in  a  differ 
ent  department  to  Mr.  Weichman's.  He 
never  represented  himself  to  me  as  being  in 
confidential  relations  to  that  department  as 


a  detective.  I  have  never  heard  any  thing 
said  against  his  character  relative  to  money 
matters,  veracity,  or  any  thing  of  that  kind 

FRANK  STITH. 

For  the  Prosecution. — June  7. 

I  have  known  Louis  J.  Weichman  in 
timately  for  about  sixteen  months.  His  repu 
tation  as  an  honest,  truthful  man  is  very  good 
indeed,  as  far  as  1  have  heard.  I  have  never 
heard  it  questioned.  We  were  both  in  the 
public  service,  in  the  same  office.  His  repu 
tation  for  loyalty  was  excellent,  and  he  was 
open  and  outspoken  in  his  friendship  for  the 
Government.  He  was  a  member  of  the  vol 
unteer  military  organization  formed  for  the 
defense  of  this  city. 

Cross-examined  by  MR.  AIKEN. 

My  relations  to  Mr.  Weichman,  outside  of 
the  office,  were  not  very  intimate.  I  never 
heard  of  his  being  a  detective  in  the  depart 
ment.  It  might  have  been  considered  that 
a  refusal  to  join  that  military  organization 
would  be  equivalent  to  a  dismissal  from  the 
office.  Mr.  Weichman  did  not  always  wear 


TESTIMONY    IN    REBUTTAL. 


139 


blue  pantaloons  about  the  office.  I  can  not 
eay  that  he  only  wore  his  blue  pantaloons  on 
drill  and  rainy  days,  or  that  he  made  use  of 
hateful  expressions  on  putting  them  on,  and 
immediately  retired  to  change  them  for  his 
citizen's  dress  when  drill  was  over. 

JAMES  P.  YOUNG. 

For  the  Prosecution. — June  7. 

I  am  in  General  Meig's  office  in  the  War 
Department.  I  am  intimately  acquainted 
with  Louis  J.  Weichman ;  have  known  him 
eince  1856.  I  was  a  college  class-mate  of  his 
at  the  Philadelphia  Higu  School;  we  both 
entered  it  in  1856.  He  remained  at  that  col 
lege  for  two  or  three  years,  then  left  and  went 
to  Maryland  to  another  college.  I  frequently 
heard  from  him,  and  about  eighteen  months 
ago  I  met  him  in  this  city,  and  have  been 
very  intimate  with  him  since.  His  reputa 
tion  as  an  honest  and  truthful  man  is  excel 
lent,  and  his  character  without  any  reproach 
whatever.  I  have  had  many  conversations 
with  him  on  political  matters,  and  he  was 
always  most  free  and  unequivocal  in  his  ex 
pressions  of  loyalty  to  the  Government.  I 
regard  him  as  a  very  radical,  loyal  man. 
Both  he  and  I  are  members  of  the  Union 
League. 

Cross-examined  by  MR.  AIKEN. 

I  have  never  known  him  as  a  detective  in 
the  employ  of  the  Government. 

P.  T.  RANSFORD. 

For  the  Prosecution. — June  7. 

I  have  known  Louis  J.  Weichman  since 
last  September.  I  am  a  clerk  in  the  AVar 
Department,  and  he  was  a  clerk  in  another 
branch  of  the  War  Department;  he  has 
visited  me  at  my  own  rooms.  His  reputation 
for  integrity  and  truth  1  have  always  regarded 
as  being  very  good  indeed.  I  have  had  very 
little  conversation  with  him  about  political 
matters,  and  am  not  competent  to  give  an 
opinion  as  to  his  loyalty. 

Cross-examined  by  MR.  AIKEN. 

Mr.  Weichman  and  myself  belonged  to 
the  same  military  organization,  called  the 
War  Department  Rifles.  A  refusal  to  be 
come  a  member  of  that  organization  I  un 
derstood  to  be  equivalent  to  a  dismissal  from 
office.  I  have  simply  met  Mr.  Weichman  as 
a  friend. 

JOHN  T.  HOLAHAN. 
For  the  Prosecution. — June  7. 

During  the  winter  and  spring,  and  up  to  the 
night  of  the  assassination,  I  boarded  with 
Mrs.  Surratt.  While  there,  I.  saw  Atzerodt 
several  times,  though  I  did  not  know  him  by 
that  name;  he  seemed  to  be  with  John  Sur 
ratt  most  of  the  time.  I  also  saw  Pavne  there 


once  at  breakfast.  The  name  by  which  1 
knew  him  was  Wood.  John  Wilkes  Booth 
I  have  seen  there  frequently.  I  have  seen 
him  in  the  parlor  with  Mrs.  Surratt  and  the 

£>ung  ladies.  I  never  knew  the  prisoner, 
avid  E.  Herold,  to  call  there.  I  remember, 
about  two  weeks  before  the  assassination,  see 
ing  a  carriage  at  Mrs.  Surratt's  door,  and  a 
person,  whom  I  afterward  learned  to  be  Mrs. 
Slater,  got  into  it  one  morning  as  I  was  dress 
ing.  Mrs.  Surratt  was  on  the  pavement  talk 
ing  to  this  person  as  she  was  getting  into  the 
carriage.  John  Surratt  was  with  this  Mrs. 
Slater.  This  was  the  last  time  I  saw  John 
Surratt  previous  to  the  3d  of  April.  The  last 
time  I  saw  him  was  on  the  night  of  the  3d 
of  April,  the  day  on  which  the  news  of  the 
fall  of  Richmond  was  received.  He  knocked 
at  the  door  of  my  room  at  about  10  o'clock, 
after  I  was  in  bed,  and  wished  me  to  exchange 
some  gold  for  greenbacks;  and  I  gave  him 
$60  in  paper  for  $40  in  gold.  He  said  he 
wanted  to  go  to  New  York,  and  that  he  could 
not  get  it  exchanged  in  time  to  leave  by  the 
arly  train  in  the  morning. 

I  never  knew  any  thing  of  Mrs.  Surratt's 
defective  eyesight  while  I  lived  with  her;  I 
do  not  remember  its  being  alluded  to  by  any 
member  of  the  household. 

Cross-examined  by  MR.  AIKEN. 

Atzerodt  passed  by  a  nickname  when  he 
was  at  Mrs.  Surratt's.  I  was  usually  from 
home  in  the  evening,  and  therefore  can  not 
say  whether  Mrs.  Surratt  could  read  or  sew 
by  gaslight.  I  never  heard  any  political  con 
versation  at  Mrs.  Surratt's,  and  never  heard 
of  any  plot  to  capture  the  President,  or  of 
any  plot  or  conspiracy  to  assassinate  the  Presi 
dent,  or  any  members  of  his  cabinet ;  if  I  had, 
I  should  have  endeavored  to  prevent  it. 

By  MR.  EWIXG. 

Mr.  EWING.  I  have  two  or  three  questions 
to  ask  the  witness.  It  ia  not  properly  a  cross- 
examination;  but  I  propose  to  treat  him  as 
my  witness,  if  there  is  no  objection. 

Assistant  Judge  Advocate  BURNETT.  The 
gentleman  announces  that  he  desires  to  ask 
some  questions,  making  the  witness  his  own  ; 
as  we  shall  be  entitled  to  rebut,  there  is  no 
objection. 

I  never  saw  or  knew  of  Mr.  Judson  Jarboe, 
or  of  any  person  by  the  name  of  Jarboe 
coming  to  Mrs.  Surratt's,  nor  have  I  ever 
known  of  Dr.  Mudd  coming  there;  I  never 
heard  his  name  mentioned. 

Mrs.  Surratt's  house  is  on  the  south  side 
of  H  Street,  about  forty-five  feet  from  Sixth 
Street.  It  is  the  first  house  from  the  corner 
of  Sixth  Street;  a  brick  house,  painted 
Irab  or  lead  color,  with  a  basement  and  a 
flight  of  eight  or  ten  steps  up  to  the  front 
door. 

Q.  Will  you  state  whether  Mr.  Weichman 
gave  himself  up  after  the  assassination  of  the 
President? 


140 


THE    CONSPIRACY    TRIAL. 


Assistant  Judge  Advocate  BURNETT.  You 
need  not  state  that. 

Mr.  EWING.  My  inquiry  in  regard  to  Mr. 
Weichman  is  for  the  purpose  of  proving  acts 
in  regard  to  him  in  association  with  Booth 
and  other  men  connected  with  the  conspiracy. 

1  want  to  show  by  his  acts  at  that  time  that 
he  was  really  a  guilty  party  in  the  plot  to 
kill  the  President.     If  I  show  that  he  was, 
and  that  instead  of  being  indicted  he  appears 
here  turning  State's  evidence,  it  will  tend  very 
much,  I    think,  to    impair  the  value   of  his 
testimony.     It  is  not  the  ordinary  form  of  im 
peachment  of  a  witness  by  laying  the  foun 
dation   in  his  examination  for  contradicting 
his  statements  upon  the  stand.     That  is  not 
the  purpose,  but  it  is  to  show  that  he  occu 
pied  the  position  of  a  co-conspirator,  and  that 
he  conies  here  clearing  himself  by  being  a 
swift  witness  against  others. 

Assistant  Judge  Advocate  BIXGHAM.  What 
the  gentleman  calls  the  act  of  Weichman 
never  can  be  proved  by  any  human  being  but 
by  Weichman  himself.  He  has  testified  that 
he  was  taken  into  custody.  Nobody  doubts 
it.  He  has  testified  that  he  was  in  custody 
when  he  was  brought  on  the  stand.  Nobody 
questions  it.  It  is  utterly  incompetent  for  the 
gentleman  to  prove  any  thing  he  said  about 
that  matter,  until  he  has  first  laid  the  foun 
dation  by  a  cross-examination  of  Weichman, 
and  then  it  is  never  competent,  except  by 
way  of  contradiction.  There  is  no  such  foun 
dation  laid,  and  it  is  therefore  incompetent 
and  illegal  at  any  stage  of  the  case,  either  now 
or  any  other  day. 

The  Commission  sustained  the  objection. 

I  saw  Mr.  Weichman  the  morning  after  the 
murder;  he  was  a  good  deal  excited.  About 

2  o'clock   on    that    morning,   Mr.    McDevitt 
and   Mr.  Clarvoe,   detectives    of  the   Metro 
politan  Police,  entered  Mrs.  Surratt's  house. 
Mr.  Weichman  opened  the   door  for  them. 
These  officers  were  in  the  passage  when  my 
wife    woke    me    up.     Whether    Mr.    Weich 
man  was  in  bed  or  dressed  when  the  officers 
called,  I  do  not  know.     I  slept  in  the  front 
room,  and  he  in  the  back  room  on  the  same 
floor. 

Q.  Was  Weichman  then  arrested? 

A.  I  took  Weichman  down  myself  to  Super 
intendent  Richards. 

Q.  When? 

A.  In  the  morning,  after  breakfast. 

Q.  When  you  took  him  down,  did  you  know 
lie  was  to  be  arrested  ? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question,  and  it  was  waived. 

Q,   How  did  you  come  to  take  him  down  ? 

A.   From  an  expression  he  made  to  me. 

Assistant  Judge  Advocate  BINGHAM.  You 
need  not  state  any  thing  he  said. 

Q.  AVas  that  expression  the  expression  of 
a  wish  to  be  delivered  up? 

A.  No,  sir. 

Assistant  Jud^re  Advocate  BINGHAM.     You 


need  not   state   any  thing  about  his  expres 
sions. 

J5y  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

The  excitement  on  account  of  the  assassin 
ation  was  very  general  throughout  the  city. 
It  was  some  weeks  after  Mrs.  Slater  had  been 
there  that  Mrs.  Surratt  told  me  the  team  in 
which  John  Surratt  and  Mrs.  Slater  went 
away  was  a  hired  one,  and  that  John  was 
then  down  in  the  country.  When  Mr.  Ho  well 
was  at  Mrs.  Surratt's,  it  might  have  been 
about  the  1st  of  March ;  he  remained,  I  think, 
three  or  four  days. 

JAMES  MCDEVITT. 
For  the  Prosecution. — June  7. 

On  the  night  of  the  assassination,  I  went 
to  Mrs.  Surratt's  house  with  Mr.  Clarvoe,  and 
several  other  officers  of  the  department.  We 
rang  the  bell,  when  a  lady  put  her  head  out 
of  the  window  and  asked  who  was  there. 
We  said  we  wished  to  enter  the  house.  As 
she  retired,  Mr.  Weichman  opened  the  door; 
he  was  in  his  shirt,  which  was  all  open  in 
front;  he  had  his  pants  on,  and  was,  I  think, 
in  his  stocking  feet.  He  appeared  as  if  he 
had  just  got  out  of  bed.  He  had  time  from 
the  moment  we  rang  to  dress  himself  to  that 
extent.  We  did  not  arrest  Mr.  Weichman 
then,  but  we  did  subsequently  when  he  came 
to  our  office.  Mr.  Weichman  accompanied 
me  to  Canada;  I  took  him  to  identify  John 
H.  Surratt.  He  went  with  me  willingly  in 
pursuit  of  the  assassins,  and  was  zealous  and 
earnest  in  performing  the  part  allotted  him 
in  the  pursuit;  and  though  he  had  every  op 
portunity  to  escape,  he  did  not.  I  left  him  in 
Canada  when  I  returned  to  New  York.  I 
could  not  state,  from  my  own  knowledge  of 
John  Surratt's  writing,  that  the  entry  on 
the  register  of  the  St.  Lawrence  Hall  is  his. 

Cross-examined  by  MR.  AIKEN. 

Mr.  Weichman  came  to  our  office  the 
morning  after  the  assassination,,  with  Mr. 
Holahan.  Weichman  made  no  confession  in 
regard  to  himself.  We  did  not  find  John  H. 
Surratt  in  Canada.  I  saw  that  he  was  reg 
istered  on  the  books  of  the  St.  Lawrence 
Hall  as  "John  Harrison,  Washington,  D. 
C.,"  on  the  6th  of  April,  and  again  by  the 
same  name  on  the  18th  of  April,  but  without 
any  city  or  State  address.  I  received  the  first 
intimation  that  John  H.  Surratt  woulcl  be 
likely  to  be  found  in  Canada  from  Mr. 
Weichman.  Mrs.  Surratt  also  told  me,  on 
the  morning  after  the  assassination,  that  she 
had  received  a  letter  from  him  on  the  14th, 
dated  in  Canada.  We  were  inquiring  for  her 
son,  when  she  said  she  had  not  seen  him  for 
two  weeks,  and  that  there  was  a  letter  some 
where  in  the  house,  which  she  had  received 
from  him  that  day.  I  asked  her  for  the  let 
ter,  but  it  could  not  be  found. 


TESTIMONY   IN   REBUTTAL. 


141 


ANDREW  KALLENBACH. 

For  the  Prosecution. — June  7. 

I  reside  near  Surrattsville,  Prince  George's 
County,  Maryland.  On  the  evening  of  the 
17th  of  April  last.  I  had  a  conversation  with 
Mr.  J.  Z.  Jenkins,  at  Mr.  Lloyd's  house  at 
Surrattsville.  He  said  that  I  was  a  liar;  that 
he  understood  I  had  been  telling  some  lies  on 
him,  and  if  he  found  it  to  be  true,  he  would 
give  me  the  damnedest  whipping  I  ever  had. 
lie  further  said  that  if  I  testified  against  him, 
or  any  one  connected  with  him,  he  would 
give  me  a  damned  whipping.  This  was  said 
in  the  presence  of  Mr.  Cottingham  and  Mr. 
Joshua  Lloyd.  Jenkins  had  been  drinking, 
but  I  can  not  say  that  he  was  drunk  on  the 
occasion.  I  have  known  Mr.  Jenkins  about 
ten  years,  I  think.  He  has  always  said  in 
my  presence  that  he  was  a  Union  man ;  and 
I  have  never  heard  him  express  any  disloyal 
sentiments.  I  can  not  say  what  his  reputa 
tion  for  loyalty  is  in  the  neighborhood. 

Cross-examined  by  MR.  AIKEN. 

Nothing  had  been  said  by  me  that  night  to 
induce  Jenkins  to  call  me  a  liar.  I  have  a 
son  in  the  rebel  army;  he  went  there  of  his 
own  choice,  and  without  my  consent.  He 
returned  about  three  weeks  ago.  I  judge  he 
has  been  in  the  rebel  army  during  the  war. 
I  did  not  place  any  restrictions  in  the  way  of 
his  going. 

I  have  lived  as  a  neighbor  of  Mrs.  Surratt's 
for  many  years.  She  had  never  been  more 
than  neighborly  with  me  and  my  family,  nor 
has  she  given  things  to  my  family  more  than 
any  neighbor  will  do  for  another.  In  politics 
I  have  been  a  Democrat  all  my  life.  I  have 
never  expressed  any  disloyal  sentiments,  and 
have  never  said  that  I  wished  the  South 
would  succeed. 

E.  L.  SMOOT. 
For  the  Prosecution. — June  2. 

I  live  in  Prince  George's  County,  Mary 
land,  about  a  mile  from  Surrattsville.  I  am 
acquainted  with  J.  Z.  Jenkins  of  Surrattsville, 
Mrs.  Surratt's  brother.  He  was  represented 
as  a  Union  man  during  the  first  year  of  the 
war,  but  after  that,  by  most  persons,  he  was 
looked  upon  as  a  Southern  sympathizer;  I 
know  of  no  exception  to  this  among  the 
Union  men.  I  never  heard  his  reputation  for 
loyalty  talked  of  much,  but  I  have  heard  him 
say,  1  think,  he  was  a  friend  to  the  South, 
and  an  enemy  to  the  Government  during  the 
struggle. 

I  know  Joseph  T.  Nott,  of  Surrattsville. 
On  the  day  after  the  President's  murder,  I 
met  two  young  men  connected  with  General 
Augur's  head-quarters,  one  of  whom  told  me 
that  John  H.  Surratt  was  supposed  to  be  the 
man  who  attempted  to  kill  Mr.  Seward.  I 
asked  Mr.  Nott  if  he  could  tell  me  where 
John  Surratt  was ;  he  smiled  and  told  me 


he  reckoned  John  was  in  New  York  by  that 
time.  I  asked  him  why  he  thought  so,  and 
he  said,  "  My  God  !  John  knows  all  about  the 
murder;  do  you  suppose  he  is  going  to  stay 
in  Washington  and  let  them  catch  him  ?"  I 
pretended  to  be  very  much  surprised  and  said, 
"  Is  that  so  ?"  He  replied,  "  It  is  so,  by  God ! 
I  could  have  told  you  that  this  thing  was 
coming  to  pass  six  months  ago."  Then  he 
put  his  hand  on  my  shoulder  and  said,  "  Keep 
that  in  your  own  skin,  my  boy.  Don't 
mention  that;  if  you  do,  it  will  ruin  me  for 
ever."  The  Mr.  Nott  who  said  this  is  the 
Joseph  T.  Nott  who  testified  here  to-day.  I 
have  heard  him  speak  against  the  Govern 
ment  frequently,  and  denounce  the  adminis 
tration  in  every  manner  and  form ;  I  heard 
him  say  that,  if  the  South  did  not  succeed, 
he  did  not  want  to  live  another  day. 

Cross-examined  by  MR.  AIKEN. 

I  have  a  brother-in-law  named  William 
Ward,  who  was  in  the  Southern  army;  he 
wae  brought  home  under  a  guard  of  soldiers. 
I  did  not,  on  the  occasion  of  his  return,  tell 
him  that  he  had  done  just  right,  and  that  I 
wished  I  had  been  there  to  help  him.  I  did 
not  express  opposition  to  his  coming  back  in 
any  way,  nor  did  I  express  sentiments  against 
the  Government  and  friendly  to  the  South. 
I  begged  my  brother-in-law  to  take  the  oath 
and  remain  at  home. 

At  the  breaking  out  of  the  rebellion,  I  re 
sided  in  Charles  County,  and  was  a  member 
of  Captain  Cox's  military  company,  which 
was  organized  before  the  war.  It  disbanded 
in  the  spring  of  1861.  I  withdrew  from  it  as 
soon  as  a  rebel  flag  was  brought  and  pre 
sented  to  it. 

I  have  known  Mr.  Jenkins  for  about  five 
years,  I  think.  I  do  not  exactly  recollect 
when  I  had  any  political  conversation  with 
him.  The  last  time  I  talked  with  him  was 
about  the  1st  of  April  last,  at  Upper  Marlboro. 
He  came  to  me  and  told  me  that  Roby  was 
applying  for  the  position  of  constable  in  the 
county,  and  asked  me  why  I  did  not  apply 
for  it.  I  told  him  I  did  not  wish  it  He  said, 
"  You  ought  to  take  it  to  keep  Roby  from 
getting  it;"  and  he  added  that  he  had  told 
the  County  Commissioners  that  if  they  ap 
pointed  Mr.  Roby,  or  any  other  man  of  his 
party,  he  would  spend  every  dollar  he  had  to 
defeat  them,  if  they  became  candidates  for 
any  other  office. 

I  did  not  vote  at  the  last  Congressional  elec 
tion  ;  I  did  not  know  any  thing  about  either 
of  the  candidates.  I  have  not  been  an  active 
Union  man.  I  have  not  meddled  either  way. 

The  conversation  with  Mr.  Nott  occurred  in 
the  bar-room  at  Surrattsville,  on  the  15th  of 
April.  It  was  all  the  conversation  we  had  at 
that  time.  He  did  not  state  what  time  he 
last  saw  John  Surratt,  nor  what  reason  he 
had  to  believe  him  to  be  connected  with  the 
affair.  Some  gentlemen  came  in  while  he 
was  talking  with  me,  and  he  had  to  wait  on 


142 


THE  CONSPIRACY   TKIAL. 


the  bar.  On  the  next  day,  Sunday,  I  commu 
nicated  this  remark  verbally  to  General  Au 
gur,  Colonel  Baker,  and  Colonel  Wells.  Mr, 
Nott  did  not  inform  me  how  he  knew  John 
Surratt  was  connected  with  it,  and  I  did  nol 
ask  him.  He  only  said  he  could  have  told 
me  six  months  ago  that  this  thing  was  going 
to  happen.  I  never  knew  Mr.  Jenkins  to  do 
any  thing  disloyal,  but  he  has  denounced  the 
administration  frequently  when  talking  with 
me.  I  do  not  recollect  particularly  to  what 
he  referred.  I  have  heard  many  do  the  same 
so  frequently,  that  I  do  not  recollect  what  Mr. 
Jenkins  said  on  any  particular  occasion.  I 
never  heard  any  man  whom  I  regarded  as  a 
loyal  man  denounce  the  administration. 

A.  V.  ROBY. 

For  the  Prosecution. — June  2. 

I  reside  close  to  Surrattsville,Prince  George's 
County,  Maryland.  Since  June  12,  1863,  I 
have  been  enrolling  officer.  I  have  known 
J.  Z.  Jenkins  since  1861,  but  not  very  inti 
mately  till  1863.  Mr.  Jenkins's  reputation  in 
that  neighborhood,  during  the  year  1861,  was 
that  of  a  Union  man ;  but  since  that  time  he 
has  been  looked  upon  as  a  sympathizer  with 
the  South.  Since  1862  he  has  been  in  the 
attitude  of  an  enemy  to  the  Government,  and 
has  opposed  all  its  measures.  Mr.  Jenkins 
took  the  oath  prescribed  by  the  Legislature 
of  Maryland,  and  then  voted. 

Cross-examined  by  MR.  AIKEN. 

The  first  time  I  saw  Mr.  Jenkins  was  when 
he  came  to  the  armory  of  Captain  Mark's 
company,  in  Washington,  of  which  I  was  a 
member.  Some  time  between  April  and  July 
of  1861  he  came  there  begging  for  money  for 
Rome  Union  man  who  had  been  killed.  The 
next  time  I  saw  him  was  at  my  house,  when 
he  was  opposing  the  nominees  of  the  Union 
party.  Dr.  Bayne  was  a  candidate  for  Sen 
ator;  Mr.  Sasser  was  candidate  for  Clerk  of 
the  County,  and  Mr.  Grimes  for  Sheriff.  I 
think  Mr.  John  M.  Brook  was  the  disunion 
candidate  for  Senator;  I  do  not  know  that 
Mr.  Brook  has  been  in  the  rebel  army;  I 
know  that  he  was  South,  and  staid  until  he 
came  home  under  the  President's  Amnesty 
Proclamation. 

I  have  been  living  near  Surrattsville  since 
September,  1863.  1  have  seen  Mr.  Jenkins 
nearly  every  day.  All  this  time  Mr.  Jenkins 
has  been  talki|ig  against  the  Government.  At 
the  April  election,  in  1864,  when  we  voted  for 
a  convention  to  make  a  new  constitution,  he 
said  he  had  been  offered  office  under  the 
damned  Government,  but  he  would  not  hold 
office  under  any  such  damned  Government. 
He  said  this  before  a  great  crowd  at  the  polls. 
I  had  just  objected  to  his  vote.  I  asked  Mr. 
Jenkins  if  he  would  vote  for  such  a  man  as 
Harris;  he  said  he  wanted  the  South  to  suc 
ceed,  and  he  said  lie  would  vote  for  Harris 
against  anybody.  I  consider  a  man  disloyal 


who  opposes  the  acts  of  the  administration. 
I  never  knew  of  any  act  of  disloyalty  on  the 
part  of  Mr.  Jenkins,  except  his  abuse  of  the 
Government. 

With  respect  to  Mr.  Jenkins  spending 
$3,000  to  sustain  the  Union  and  the  Govern 
ment,  I  do  not  think  he  ever  had  it  to  spend. 
I  have  never  heard  of  his  spending  any  thing, 
except  from  his  own  lips. 

DORLEY  B.  ROBY. 

For  the  Prosecution. — June  5. 

I  have  known  Mr.  J.  Z.  Jenkins  for  several 
years.  For  the  last  three  years  he  has  been 
one  of  the  most  disloyal  men  in  the  county. 
It  is  from  personal  knowledge  of  his  conduct 
and  observations  that  I  pronounce  him  dis 
loyal.  He  got  so  outrageous  that  I  had  to 
apply  to  General  Wallace,  at  Baltimore,  to 
have  him  arrested.  Since  that  time  he  has 
behaved  himself  a  little  better.  He  is  known 
and  recognized  in  that  neighborhood  as  an 
open  and  outspoken  enemy  of  the  Govern 
ment.  1  have  heard  him  curse  the  President, 
and  damn  him  to  all  intents  and  purposes. 
He  said  old  Lincoln,  the  damned  old  son  of 
a  bitch,  had  offered  him  an  office,  but  that 
he  would  not  hold  office  under  any  such 
damned  creature,  or  any  such  damned  Gov 
ernment, 

Cross-examined  by  MR.  CLAMPITT. 

I  have  known  Mr.  Jenkins  for  four  or  five 
years.  I  was  not  a  resident  of  the  county 
in  1861  and  1862;  I  was  in  1863.  1  waa 
born  in  Charles  County,  and  raised  in  Prince 
George's;  and  I  have  been  backward  and  for 
ward  through  there  all  the  time.  In  1862  I 
knew  Mr.  Jenkins  very  well.  I  knew  him  to 
be  a  Union  man  till  about  three  years  ago. 
He  was  a  very  strong  Know-Nothing,  and  I 
was  a  Know-Nothing  too.  Jenkins  aban 
doned  the  Union  party  about  three  years 
ago  this  fall.  He  lost  a  negro  man  ;  and  it 
seemed  that  his  loyalty  to  his  Government 
only  lasted  as  long  as  his  negro  was  pro 
tected.  As  soon  as  he  lost  the  negro,  he 
abandoned  his  Union  principles. 

Tne  flag  that  was  raised,  and  which  Mr.  Jen 
kins  is  said  to  have  protected,  was  understood 
obea  Know-Nothing  flag;  a  Union  flag  raised 
\vtheKnow-Nothing  party.  The  Know-Noth- 
ngs  were  generally  considered  Union  men,  but 
.here  were  a  good  many  who,  like  Mr.  Jen- 
dns,  went  over  to  the  rebels  as  Boon  as  there 
was  a  division  of  parties. 

There  is  no  suit  pending  between  me  and 
any  citizen  of  Maryland;  there  is  a  suit  pend 
ing  against  my  son,  Andrew  V.  Roby.  He 
was  appointed  Deputy  Provost  Marshal  for 
the  purpose  of  carrying  out  General  Schenck's 
order  at  the  election.  He  was  ordered  to  have 
every  man  arrested  who  interfered  with  the 
election.  This  man  Jenkins  behaved  very 
badly  at  the  election.  Colonel  Baker  had  a 
company  of  men  there,  and  my  son  suggested 


TESTIMONY  IN  REBUTTAL. 


143 


to  the  Captain  that  Jenkins  should  be  ar 
rested.  Pie  was  arrested,  placed  on  a  chair, 
and  a  bottle  of  whisky  taken  from  his  pocket. 
At  night  I  thought  the  poor  fellow  had  got 
sober;  he  looked  very  penitent,  and  I  sug 
gested  to  the  Captain  that  it  was  not  worth 
while  to  take  him  up  to  Colonel  Baker's, 
that  he  should  allow  him  to  go;  and  he 
acted  on  my  suggestion.  The  suit  pending 
between  my  son  and  Mr.  Jenkins  is  for  false 
imprisonment. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

The  prosecution  against  my  son  is  for  at 
tempting  to  execute  the  Federal  authority. 
The  authorities,  who  have  the  management 
of  the  case,  have  taken  steps  to  have  it  re 
moved  to  the  United  States  Court. 

WILLIAM  A.  EVANS. 
For  the  Prosecution. — June  5. 

I  reside  in  Prince  George's  County,  Md., 
and  am  a  Presbyterian  minister.  I  was  com 
pelled  to  leave  my  Church  in  1861  because 
of  my  loyalty  and  devotion  to  the  Union. 
Prince  George's  County  is  a  very  disloyal 
neighborhood. 

1  know  J.  Z.  Jenkins  very  well.  He  pre 
tended  to  be  a  loyal  man  in  1861,  as  a  great 
many  in  Prince  George's,  St.  Mary's,  and 
those  lower  counties  did,  but  I  never  consid 
ered  him  a  loyal  man,  because,  if  he  had  been, 
he  would  have  co-operated  with  me  and 
several  others,  who  were  endeavoring  to  dis 
charge  our  duty  to  our  country.  His  repu 
tation  and  conduct  since  1861,  has  been  dis 
loyal.  I  call  him  a  rebel.  His  sympathy  with 
the  rebels  has  been  open  and  outspoken. 

Cross-examined  by  MR.  CLAMPITT. 

I  have  known  Mr.  Jenkins  about  fifteen 
years.  I  lived  in  the  same  county  as  he  did 
in  1861,  but  because  of  my  abolition  procliv 
ities,  1  was  not,  at  times,  permitted  to  remain 
in  the  county  or  the  State.  There  was  a  writ 
out  for  me  in  1861,  and  I  was  only  permitted 
to  visit  my  house  in  secrecy.  Everybody 
that  knows  Mr.  Jenkins  knows  that  he  is  a 
rebel.  In  1861,  he  pretended  to  be  a  Union 
man ;  but  I  knew  him  to  be  a  hypocrite.  I 
judged  him  fo  be  a  rebel  by  his  conduct; 
saying  that  the  country  would  go  to  ruin, 
and  that  the  South  would  be  successful.  He 
said  this  to  other  gentlemen,  and  they  repeated 
it  to  me.  I  held  a  secret  commission  under  the 
Government.  I  know  nothing  of  his  labors 
to  obtain  Union  votes  in  the  State  of  Mary 


land,  and  if  he  has  done  any  thing  to  protect 
the  Union  flag  when  it  was  threatened  to  be 
torn  down  by  secession  sympathizers,  I  have 
known  nothing  of  it.  I  have  known  him  to 
call  at  the  different  polls  on  election  times, 
and  endeavor  to  dissuade  men  from  voting 
for  the  Union  cause.  Even  at  the  last  elec 
tion,  in  1864,  he  said  he  would  not  vote  for 
the  damned  abolition  Government  to  save 
anybody's  life. 

By  the  JUDGE  ADVOCATE 

I  do  not  know  a  loyal  man  in  that  neigh 
borhood1  except  Mr.  Roby,  his  son,  and  a  few 
others.  We  were  in  danger  all  the  time,  so 
much  so  that  I  had  to  call  upon  General 
Augur  for  a  guard. 

I  belong  to  the  New  School  Presbyterian 
Church,  and  I  am  a  member  of  the  Presby 
tery  of  the  District  of  Columbia. 

JOHN  L.  THOMPSON. 
For  the  Prosecution. — June  5. 

I  have  known  J.  Z.  Jenkins  ever  since  I 
can  remember.  For  the  last  two  years  and 
six  months  he  has  not  been  a  loyal  man; 
for  the  four  years  preceding  that  he  was. 
He  is  regarded  as  a  disloyal  man  in  that 
community;  his  disloyalty  is  open  and  out 
spoken. 

I  have  had  a  difficulty  with  Mr.  Jenkins, 
which  grew  out  of  my  being  drafted,  and 
going  to  Mr.  Roby's  son  to  aid  me,  Jenkins 
said  he  would  cut  my  throat  in  consequence 
of  it,  and  drew  his  knife,  a  small  pen-knife, 
against  me.  The  only  reason  that  I  know 
for  his  conduct  was,  that  he  hated  the  Gov 
ernment.  Jenkins  said  that,  in  case  he  was 
forced  to  fight,  he  would  go  with  the  South. 

I  lived  in  Mrs.  Surra tt's  family  for  two 
years.  I  do  not  think  she  was  a  loyal 
woman.  I  judge  so  by  her  conversation, 
which  was  against  the  Government 

Cross-examined  ly  MR.  CLAMPITT. 

I  have  known  Mr.  Jenkins  ever  since  he 
was  a  child.  He  was  considered  a  loyal  man 
in  1861,  but  not  in  1863.  I  know  nothing 
of  Mr.  Jenkins  coming  to  Washington  to 
obtain  votes  for  the  Union  Government.  I 
know  of  his  assisting  to  raise  the  Union  flag, 
and  with  a  band  of  men  assisting  in  protect 
ing  it;  but  that  was  in  1861.  1  have  heard 
him  make  disloyal  remarks  many  a  time. 
He  said  that  he  hated  the  Government  the 
worst  on  earth,  and  he  said  that  emancipa 
tion  was  all  wrong. 


144 


THE    CONSPIRACY   TRIAL. 


TESTIMONY  CONCERNING  GEORGE  A.  ATZERODT 


ROBERT  R.  JONES. 
For  the  Prosecution. — May  13. 

I  am  a  clerk  at  the  Kirkwood  House  in  this 
city.  The  leaf  exhibited  to  the  Commission 
is  from  the  register  of  the  Kirkwood  House. 
It  contains  the  name  of  Gr.  A.  Atzerodt, 
Charles  County.  It  appears  from  the  regis 
ter  that  Atzerodt  took  room  No.  126  on  the 
morning  of  the  14th  of  April  last,  I  think 
before  8  o'clock  in  the  morning.  I  was  not 
present  when  his  name  was  registered,  and 
did  not  see  him  until  between  12  and  1  in  the 
day.  I  recognize  Atzerodt  among  the  ac 
cused.  That  is  the  man,  I  think. 

[The  witness  here  pointed  to  the  accused,  G.  A.  Atze 
rodt.] 

I  went  to  the  room  occupied  by  Atzerodt 
after  it  had  been  opened  by  Mr.  Lee,  on  the 
night  of  the  15th  of  April,  and  I  saw  all  the 
articles  that  were  found  there.  I  can  not 
identify  the  knife,  though  it  was  similar  to 
the  one  just  shown  me.  It  was  between  the 
sheet  and  the  mattress.  The  bed  had  not 
been  occupied  on  the  night  of  the  14th,  nor 
had  the  chambermaid  been  able  to  get  into 
the  room  the  next  day.  A  young  man  spoke 
to  Atzerodt  when  I  saw  him  standing  at  the 
office  counter.  I  do  not  know  his  name. 
Atzerodt,  before  that,  asked  me  if  any  one 
had  inquired  for  him  within  a  short  time. 
From  the  book  it  appears  that  Atzerodt  paid 
one  day  in  advance.  I  had  never  seen  him 
in  the  hotel  before. 

JOHN  LEE. 
For  the  Prosecution. — May  13. 

I  belong  to  the  military  police  force  of  this 
city.  On  the  night  of  the  15th  of  April  I 
went,  by  order  of  Major  O'Beirne,  to  the 
Kirkwood  House.  When  I  got  there  a  per 
son  employed  in  the  house,  whom  I  knew, 
told  me  there  had  been  a  rather  suspicious- 
looking  man  there,  who  had  taken  a  room 
the  day  previous.  On  the  hotel  register  I 
found  a  name  written  very  badly — Gr.  A. 
Atzerodt.  I  went  to  the  room  occupied  by 
this  man ;  the  door  was  locked,  and  the  key 
could  not  be  found.  With  permission  of  one 
of  the  proprietors  I  burst  open  the  door.  I 
found  in  the  room  a  black  coat  hanging  on 
the  wall ;  underneath  the  pillow,  or  bolster,  I 
found  a  revolver,  loaded  and  capped.  In  the 
pocket  of  the  coat  I  found  a  bank-book  of 
J.  Wilkes  Booth,  showing  a  credit  of  $455, 
with  the  Ontario  Bank,  Montreal,  and  also  a 
map  of  Virginia;  a  handkerchief  marked 
''Mary  R.  Booth;"  another  marked  "  F.  M." 
or  "  F.  A.  Nelson;"  another  handkerchief 
with  the  letter  "  II"  in  the  corner.  In  the 


bank-book  was  an  envelope  with  the  frank 
of  the  Hon.  John  Conners.  There  was  also 
a  pair  of  new  gauntlets,  a  colored  handker 
chief,  three  boxes  of  cartridges,  a  piece  of 
liquorice,  and  a  tooth-brush.  On  the  corner 
of  the  bank-book  was  "  J.  W.  Booth,  53." 
On  the  inside  of  the  book  was  "  Mr.  J.  Wilkes 
Booth  in  account  with  the  Ontario  Bank, 
Canada.  1864:  October  27;  bv  deposit,  cr. 
$455." 

There  was  also  a  brass  spur,  a  pair  of 
socks,  and  two  collars.  Between  the  sheets 
and  mattresses  I  found  this  large  bowie-knife. 

[These  articles  were  all  offered  in  evidence.] 

The  room  in  which  these  things  were  found 
was  No.  126,  and  is  on  the  floor  above  the  room 
then  occupied  by  Vice-President  Johnson. 

Cross-examined  by  MR.  DOSTER. 

The  person  I  met  at  the  Kirkwood  House, 
who  spoke  of  the  suspicious-looking  man 
being  there,  said,  "I  believe  that  he  had  a 
gray  coat  on."  I  did  not  find  the  signature 
of  Atzerodt,  or  any  thing  in  the  room;  I 
only  know  it  was  his  room  because  it  said  so 
on  the  register. 

By  the  JUDGE  ADVOCATE. 

In  coming  down  from  room  126,  to  reach 
the  office  of  the  hotel,  a  person  \vould  pass 
the  door  of  the  room  occupied  by  Vice- 
President  Johnson.  When  I  came  down, 
there  was  a  soldier  at  the  door.  A  man  of 
any  courage,  coming  down  the  stairs,  could 
easily  throw  a  handful  of  snuff  in  the  sol 
dier's  eyes  and  go  right  into  Mr.  Johnson'a 
room. 

LYMAX  S.  SPRAGUE. 

For  the  Prosecution. — May  15. 

I  am  clerk  at  the  Kirkwood  House  in  this 
city.  I  went  up  to  the  room  of  the  prisoner, 
Atzerodt,  with  Mr.  Lee,  and  was  present 
when  it  was  broken  open.  All  I  saw  found, 
as  I  went  in,  was  the  revolver  under  the 
pillow.  No  one  inquired  for  Atzerodt  on  the 
14th  while  I  was  in  the  office. 

Cross-examined  by  MR.  DOSTER. 

I  was  at  the  desk  of  the  Kirkwood  House 
that  day  from  8  in  the  morning  till  12  at 
noon  ;  no  one  called  for  Atzerodt  during  that 
time. 

COLONEL  W.  R.  NEVINS. 

For  the  Prosecution — May  27. 

I  was  in  this  city  on  the  12th  of  April, 
and  stopped  at  the  Kirkwood  House.  While 
there,  I  saw  that  man  [pointing  to  the 


TESTIMONY  CONCERNING  GEORGE  A.  ATZERODT. 


145 


accused,  George  A.  Atzerodt]  in  the  passage 
that  leads  to  the  dining-room,  when  he  asked 
me  if  I  knew  where  President  Johnson  was. 
I  believe  that  was  his  first  question.  I 
showed  him  wrhere  Mr.  Johnson's  room  was, 
on  the  left-hand  side  of  the  passage;  "  How 
ever,"  said  I,  "  the  Vice-President  is  now 
eating  his  dinner."  I  thought  he  was  a 
stranger,  and  referred  him  to  the  Vice- 
President's  servant,  a  colored  man,  who  was 
standing  behind  him.  He  looked  into  the 
dining-room;  whether  he  went  in  or  not  I 
do  not  know. 

Cross-examined  by  MR.  DOSTER. 

This  was  between  4  and  5  o'clock.  There 
was  no  other  person  at  dinner  at  the  time 
but  the  Vice-President  and  myself.  This 
man  met  me  near  the  two  or  three  steps  that 
come  down  into  the  dining-room.  1  showed 
him  where  the  Vice-President  was  sitting  at 
the  further  end  of  the  room,  with  his  yellow 
man  behind  him.  Atzerodt  had  on  dark 
clothes  at  the  time,  and,  I  believe,  a  low- 
crowned  black  felt  hat.  I  noticed  his  coun 
tenance  more  than  his  clothes,  but  I  could 
tell  him  among  fifty  thousand.  1  am  now 
sixty-five  years,  of  age. 

By  JUDGE  ADVOCATE  BURNETT. 

When  I  first  came  into  Court  this  morn 
ing,  I  was  asked  to  point  out,  among  the 
prisoners,  the  man  I  had  seen  at  the  Kirk- 
wood  House,  and  I  designated  the  prisoner, 
Atzerodt,  before  his  name  was  mentioned  to 
me. 

JOHN  FLETCHER. 
For  the  Prosecution. — May  17. 

I  am  foreman  at  J.  Naylor's  livery-stable, 
in  this  city.  On  the  3d  of  April,  Atzerodt 
and  another  gentleman  came  to  the  stable 
with  two  horses,  and  inquired  for  Mr.  Nay- 
lor.  Atzerodt  said  they  wanted  to  put  up  the 
horses  at  the  stable,  and  I  ordered  them  to 
be  put  up.  The  other  gentleman  said  he  was 
going  to  Philadelphia,  and  that  he  would 
leave  the  sale  of  his  horse  to  Atzerodt;  he 
left,  and  I  have  not  seen  him  since.  Atzerodt 
kept  the  horses  at  the  stable  until  the  12th 
of  April,  when  he  sold  one  of  them  to 
Thompson,  the  stage  contractor,  and  took 
the  other,  a  brown  horse,  away.  This  was 
a  very  heavy,  common  work  horse,  blind 
of  one  eye;  it  was  a  dark -brown,  with  a 
heavy  tail,  and  heavy  fetlocks  down  to  the 
feet. 

I  saw  Atzerodt  no  more  till  1  o'clock,  on 
the  14th  of  April,  when  he  and  Herold  came 
to  the  stable  with  a  dark-bay  mare.  He 
said  he  had  sold  the  brown  horse  and  saddle 
and  bridle  in  Montgomery  County,  and  had 
bought  this  mare,  with  saddle  and  bridle. 
He  then  told  me  to  put  up  the  mare  in  the 
stable.  I  went  to  my  supper  at  half-past  6, 
and  when  I  came  back  the  colored  boy  had 
the  mare  at  the  door,  with  saddle  and  bridle 

10 


on  her.  Atzerodt  paid  the  boy  fifty  cents  for 
her  keep,  and  asked  me  if  that  was  right; 
I  said,  "Yes."  "If  I  stay  until  morning," 
he  asked,  "how  much  more  are  you  going 
to  charge  me?"  "Only  fifty  cents,"  I  said. 
He  then  went  out  and  staid  about  three- 
quarters  of  an  hour,  when  he  returned.  He 
told  me  not  to  take  the  bridle  or  saddle  off 
the  mare  until  10  o'clock,  and  to  keep  the 
stable  open  for  him.  I  said  I  would  do  so, 
and  that  I  would  be  there  myself  at  that 
time.  At  10  o'clock  he  came  after  the  mare. 
He  asked  me  to  take  a  drink  with  him,  and 
I  did,  at  the  Union  Hotel,  corner  of  Thir 
teen-and-a-half  and  E  Streets.  I  had  a  glass 
of  beer  and  he  drank  some  whisky.  Return 
ing  to  the  stable  he  said,  "If  this  thing  hap 
pens  to-night,  you  will  hear  of  a  present,"  or 
'•Get  a  present."  He  seemed  to  me  about 
half-tight,  and  was  very  excited-looking.  I 
did  not  pay  much  attention  to  him.  As  he 
mounted  the  mare  I  said,  "  I  would  not  like 
to  ride  that  mare  through  the  city  in  the 
night,  for  she  looks  so  skittish." 

"Well,"  said  he,  "She's  good  upon  a  re 
treat."  I  then  said  to  him,  "Your  acquaint 
ance  is  staying  out  very  late  with  our  horse;" 
that  was  Herold.  "Oh,"  said  he,  "He'll  be 
back  after  awhile."  Atzerodt  then  left,  and 
I  followed  him  until  he  went  down  E  Street 
and  passed  Thirteen-and-a-half  Street,  and 
saw  him  go  into  the  Kirkwood  House.  I 
watched  until  he  came  out  and  mounted  the 
mare  again.  He  went  along  D  Street  and 
turned  to  Tenth  Street,  to  the  left  of  D  and 
Tenth  Streets.  I  then  returned  to  the  stable. 

WASHINGTON  BRISCOE. 
For  the  Prosecution. — May  18. 

I  have  known  the  prisoner,  George  Atze 
rodt,  for  seven  or  eight  years.  On  the  night 
of  the  14th  of  April,  between  half-past  11 
and  12,  he  got  on  a  Navy-Yard  car  at  Sixth 
Street.  I  was  in  the  car,  but  he  did  not  rec 
ognize  me  till  I  spoke  to  him.  I  asked  him 
if  he  had  heard  the  news,  and  he  said  he 
had.  Then  he  asked  me  to  let  him  sleep  in 
the  store,  down  at  the  Navy  Yard,  with  me, 
I  told  him  he  could  not.  His  manner  was 
excited,  and  he  was  very  anxious  to  sleep 
there;  he  urged  me  to  let  him.  I  told  him 
again  he  could  not;  that  the  gentleman  I  was 
with  was  there,  and  1  had  no  right  to  ask 
him.  He  rode  down  as  far  as  I  did,  then  got 
out  and  asked  me  again.  When  he  left  me, 
he  said  he  would  go  back  to  the  Pennsylvania 
House,  on  C  Street,  where  he  was  stopping. 

Cross-examined  by  MR.  DOSTER. 

I  did  not  notice  the  precise  time  when  I 
met  Atzerodt,  but  I  think  it  was  between 
half-past  11  and  12.  I  was  going  to  the 
Navy  Yard,  my  home,  and  he  rode  down  in 
the  car  with  rne  to  I  Street,  near  my  store, 
and  got  out  where  I  did.  I  waited  with  him 
on  the  corner  of  I  and  Garrison  Streets,  till 


146 


THE    CONSPIRACY   TRIAL. 


the  car  came  back.  I  think  it  was  near  12 
when  he  got  into  the  car  again  and  left  me. 
I  hardly  know  whether  he  had  been  drink 
ing;  but,  judging  from  his  manner,  he  was  a 
little  excited. 

JOHN  GREEXAWALT. 
For  the  Prosecution. — May  17. 

I  keep  the  Pennsylvania  House,  on  C 
Street,  between  Four-and-a-half  and  Sixth 
Streets.  I  know  the  prisoner,  Atzerodt.  A 
person  frequently  called  on  Atzerodt,  who,  I 
have  since  found,  was  J.  Wilkes  Booth. 

[A  photograph  of  J.  Wilkes  Booth  was  exhibited  to  the 
witness.] 

That  is  the  person.  Sometimes  Booth 
would  come  through  the  hall  where  Atzerodt 
would  be  sitting;  at  other  times  Booth  would 
walk  in  and  walk  back,  when  Atzerodt  would 
get  up  and  follow  him.  They  have  had  fre 
quent  interviews  in  front  of  my  house;  and 
several  times,  as  I  walked  on  the  steps,  they 
would  leave  and  walk  toward  the  National 
Hotel,  where  they  stood  and  had  their  inter 
view. 

On  one  occasion  several  young  men  from 
Port  Tobacco  met  Atzerodt  at  the  Pennsyl 
vania  House  They  had  been  drinking,  and 
Atzerodt  asked  me  to  take  a  drink,  which  I 
did,  when  he  said,  "  Greenawalt,  I  am  pretty 
nearly  broke,  but  I  have  always  got  friends 
enough  who  will  give  me  as  much  money  as 
will  see  me  through."  He  added,  "I  am 
going  away  some  of  these  days,  and  I  will 
return  with  as  much  gold  as  will  keep  me  all 
my  lifetime."  This  was  said  about  the  1st 
of  April,  nine  or  ten  days  after  he  first  came 
to  my  house,  which  was  on  the  18th  of 
March  last.  Atzerodt  was  in  the  habit  of 
stopping  at  my  house.  He  never  stopped 
any  length  of  time.  He  left  my  house  on 
the  Wednesday  before  the  assassination.  He 
had  no  baggage  with  him.  I  saw  him  next 
on  the  Saturday  morning  after  the  assassin 
ation,  between  2  and  3  o'clock. 

I  had  just  come  in  the  house  myself,  and 
had  gone  to  my  room.  About  five  minutes 
afterward  a  servant  came  up  with  a  five-dol 
lar  bill  and  said,  "There  is  a  man  come  in 
with  Atzerodt  who  wants  lodging,  and  wants 
to  pay  for  it."  So  I  went  down  and  gave  the 
man  his  change.  I  had  an  uneasiness  about 
the  thing  myself;  thought  there  was  some 
thing  wrong. 

Atzerodt  asked  for  his  old  room,  and  I 
told  him  it  was  occupied.  I  told  him  he 
would  have  to  go  with  this  gentleman.  So 
I  gave  this  man  Thomas  his  change,  and 
told  the  servant  to  show  him  to  his  room, 
and  Atzerodt  was  going  to  follow  him,  when 
I  said,  "Atzerodt,  you  have  not  registered." 
Said  he,  "Do  you  want  my  name?"  I  re 
plied,  "  Certainly."  He  hesitated  some,  but 
stepped  back  and  registered,  and  went  to  his 
room.  He  had  never  before  hesitated  to 
register  his  name.  The  man  who  was  with 
Atzerodt  was  about  five  feet  seven  or  eight 


inches  high,  and  his  weight  was  about  one 
hundred  and  forty  pounds,  I  should  judge. 
He  was  poorly  dressed,  in  dark  clothes.  His 
pants  were  worn  through  at  the  back  near 
the  heels.  I  took  notice  of  that  as  he  walked 
out  of  the  door  to  go  to  his  room.  He 
was  quite  dark-complexioned  and  very  much 
weather-beaten.  He  had  dark  hair. 

Neither  of  the  men  seemed  excited.  This 
man  Thomas,  I  noticed,  kept  a  close  eye  on 
me  as  I  came  in.  It  was  Thomas  who  asked 
for  the  room.  Atzerodt  was  lying  on  the 
settee  in  the  corner  of  the  room  when  I  came 
in.  Atzerodt  asked  for  his  old  room;  I  told 
him  it  was  occupied,  and  that  he  would  have 
to  go  with  this  man.  It  was  a  large  room, 
with  six  beds  in  it  There  were  other  per 
sons  in  the  room  before  Thomas  and  Atze 
rodt  went  there. 

Thomas  had  the  appearance  of  a  laboring 
man.  I  think  he  wore  a  broadcloth  coat, 
though  it  was  very  much  worn,  but  I  judged 
that  his  clothes  were  worn  as  a  disguise.  Ilia 
hair,  moustache,  and  whiskers  were  black. 
The  name  he  gave  was  Samuel  Thomas.  Ho 
got  up  about  5  o'clock  and  left  the  house, 
so  the  servant  told  me.  A  lady  who  waa 
stopping  at  the  house  had  given  orders  for 
a  carriage  to  take  her  to  the  6:15  train.  She 
left  before  I  got  up,  and  as  the  servant  was 
going  out  of  the  door,  this  man  Thomas 
went  out  and  asked  the  way  to  the  railway 
depot.  He  had  no  baggage. 

Atzerodt  left  shortly  afterward,  and  walked 
toward  Sixth  Street.  As  the  servant  came 
back  from  getting  the  carriage,  he  met  Atze 
rodt,  and  said  to  him,  "What  brings  you  out 
so  early  this  morning?"  "Well,"  said  he,  "  I 
have  got  business."  He  left  without  paying 
his  bill,  and  I  have  never  seen  him  since  until 
now.  There  he  sits,  [pointing  to  the  accused, 
George  A.  Atzerodt] 

In  March,  Atzerodt  showed  me  a  revolver 
he  had  just  bought,  I  told  him  I  wished  I 
had  known  he  wanted  one,  for  I  had  a  new 
one  for  which  I  had  no  use. 

[The  revolver  found  by  John  Lee,  at  the  Kirkwood 
House,  was  here  exhibited  to  the  witness.] 

The  revolver  Atzerodt  had  was  similar  to 
that,  but  I  do  not  think  that  is  the  same, 

Cross-examined  by  MR.  DOSTER. 

Atzerodt  left  my  house  on  the  12th  of 
April.  He  had  been  there  from  the  18th  of 
March.  On  the  27th  of  March  he  left  and 
staid  away  over  night,  and  returned  with  a 
man  named  Bailey. 

Atzerodt  once  handed  a  large  revolver  into 
the  office  for  me  to  keep  for  him.  I  saw  no 
other  arms.  He  may  have  had  others;  in 
the  office  he  said  he  had  a  knife. 

When  Mr.  Bailey  left  my  house,  he  wanted 
to  pay  his  stage  fare,  and  I  bought  of  him 
some  eight  or  nine  $2.50  gold-pieces,  and,  I 
think,  about  seven  dollars'  worth  of  silver. 

I  can  not  say  that  Thomas  and  Atzerodt 
were  acquainted  previously  to  their  calling 


TESTIMONY  CONCERNING  GEORGE  A.  ATZERODT. 


147 


at  my  house  on  the  night  of  the  14th.  At 
zerodt  did  not  seem  sleepy,  and  he  was  not  in 
liquor.  I  did  not  see  them  come  in;  the 
servant  told  me  they  came  in  together;  but 
that  is  the  only  reason  I  had  for  thinking 
they  came  together.  I  told  Atzerodt  that  he 
would  have  to  room  with  that  man,  and  he 
had  no  objection.  I  do  not  recognize  the 
man  Thomas  among  the  prisoners. 

That  man  [pointing  to  the  accused,  Edward 
Spangler]  resembles  him  somewhat,  out  is  not 
so  dark,  and  he  has  not  got  the  beard  on  that 
Thomas  had  then.  I  could  not  be  positive  it 
is  the  same  man. 

[The  coat  found  by  John  Lee  at  the  Kirkwood  House 
was  handed  to  the  witness.] 

I  never  saw  Atzerodt  wear  that  coat. 
Cross-examined  by  MR.  EWING. 

The  man  Thomas  had  black  hair  and  a 
heavy  black  moustache,  and  he  had  whiskers 
and  beard  in  front 

By  the  COURT. 

I  do  not  know  why  Atzerodt  and  the  man 
Thomas  got  up  at  the  same  time  in  the  morn 
ing.  They  did  not  occupy  the  same  bed.  On 
the  Wednesday  before  the  assassination,  when 
Atzerodt  left,  he  told  me  he  was  going  away, 
and  he  said,  "Greenawalt,  I  owe  you  a  couple 
of  days'  board;  will  it  make  any  difference  to 
you  whether  I  pay  for  it  now  or  when  I  come 
back  ?"  He  said  he  was  going  to  Mont 
gomery  County. 

I  never  saw  the  prisoner,  O'Laughlin,  at 
my  house. 

JAMES  WALKER  (colored). 
For  the  Prosecution. — May  18. 

My  business  at  the  Pennsylvania  House, 
in  this  city,  is  to  make  fires,  carry  water,  and 
to  wait  on  gentlemen  that  come  in  late  and 
early.  I  have  seen  the  prisoner,  Atzerodt, 
[pointing  to  the  accused,  George  A.  Atzerodt,] 
at  the  house.  He  came  there  between  12  and 
1  o'clock,  I  think,  on  Friday  night,  the  14th  of 
April;  I  held  his  horse  while  he  went  into 
the  bar.  When  he  came  out,  he  asked  me 
to  give  him  a  stick  or  a  switch,  as  the  horse 
was  shy  of  the  light;  I  gave  him  a  piece  of 
a  hoop,  and  he  went  off.  I  do  not  know 
whether  he  had  any  arms;  I  did  not  see  any. 
About  2  o'clock  in  the  morning  he  came 
back  again,  on  foot  this  time.  I  had  to  get 
up  to  let  him  in.  He  wanted  to  go  to  room 
51,  which  he  had  commonly  occupied;  but 
that  was  taken  up,  and  he  went  to  53.  He 
left  between  5  and  6  in  the  morning.  As  I 
was  going  out  for  a  hack  to  take  a  lady  to 
the  6:15  train,  I  overtook  him  about  thirty 
steps  from  the  door;  he  was  walking  along 
slowly.  Another  man  came  to  the  house 
about  the  same  time  that  night,  and  occupied 
the  same  room.  He  went  away  a  little  ear 
lier,  to  take  the  6:15  train;  I  opened  the 
door  and  let  him  out  He  had  no  baggage 
that  I  saw.  The  gas  was  down  pretty  low 


when  they  came  in;  but  the  man  seemed  to 
have  on  dark  clothes  and  a  slouch  hat.  He 
paid  in  advance,  and  went  straight  to  the 
room.  I  do  not  know  that  I  would  know  him. 
I  can  not  say  that  any  of  the  prisoners  resem 
ble  him.  I  was  not  so  well  acquainted  with 
him  as  with  Mr.  Atzerodt,  who  had  been 
stopping  there  a  couple  of  weeks. 

Cross-examined  by  MR.  DOSTER. 

[A  coat  found  at  the  Kirkwood  House  by  John  Lee  was 
exhibited  to  the  witness.] 

I  do  not  recollect  seeing  that  coat  before. 
I  have  cleaned  Mr.  Atzerodt's  clothes  and 
boots,  but  I  never  saw  that  coat.  We  gen 
erally  close  the  house  at  half-past  12  or  1 
o'clock,  and  we  had  not  closed  on  the  Friday 
night  when  Mr.  Atzerodt  came  first ;  we  closed 
soon  afterward.  The  horse  that  I  held  for 
him  then  was  a  light-bay  horse,  small;  it 
seemed  to  be  young,  and  had  plenty  of  spirit 
I  opened  the  door  for  Mr.  Atzerodt  on  the 
second  visit,  and  took  him  and  the  other 
man  to  their  room.  They  had  no  conversa 
tion  in  my  presence. 

I  have  seen  Mr.  Atzerodt  have  a  belt,  with 
a  pistol  and  a  knife,  but  I  never  saw  the 
knife  out  of  the  sheath.  That  was  probably 
four  or  five  days  before  that  Friday. 

By  the  JUDGE  ADVOCATE. 

[Exhibiting  to  the  witness  the  knife  found  by  John  Loe 
at  the  Kirkwood  House.] 

I  can  not  tell  whether  that  was  the  knife. 
It  was  in  the  sheath,  fastened  to  the  belt 

[Exhibiting  a  bowie-knife  found  on  Atzerodt.] 

It  was  something  more  like  that. 

[The  knife  was  offered  in  evidence.] 

LIEUTENANT  W.  R.  KEIM. 
For  the  Prosecution. — May  18. 

I  was  at  the  Pennsylvania  House,  in  this 
city,  on  the  night  of  the  14th  of  April  last 
I  went  to  the  hotel  about  4  o'clock  on  the 
Saturday  morning,  and  Atzerodt  was  in  bed 
when  I  went  into  the  room.  His  bed  was 
opposite  mine.  I  asked  him  if  he  had  heard 
of  the  assassination  of  the  President,  and  he 
said  he  had ;  that  it  was  an  awful  affair.  When 
I  awoke  in  the  morning,  he  was  gone.  I  did 
not  see  any  arms  with  him.  About  a  week 
or  ten  days  before  the  assassination  I  occupied 
room  51  with  Atzerodt 

[The  large  bowie-knife  found  at  the  Kirkwood  House 
was  exhibited  to  the  witness.] 

I  would  not  swear  that  is  the  knife  I  have 
seen  in  Atzerodt's  possession,  but  it  was  one 
about  that  size.  Atzerodt  went  out  of  the 
room  one  morning  and  left  the  knife  in  his 
bed.  I  got  up  and  took  it,  and  put  it  under 
my  pillow.  In  a  few  minutes  he  returned, 
went  to  his  bed  and  looked  about,  and  then 
said,  "  Have  you  seen  my  knife?"  I  replied, 
"Yes;  here  it  is."  Then  he  said,  "I  want 
that;  if  one  fails,  I  want  the  other;"  and  I  gave 
it  to  him.  His  pistol,  a  revolver,  he  always 
carried  round  his  waist 


148 


THE    CONSPIRACY    TRIAL. 


Cross-examined  by  MR.  DOSTER. 

I  did  not  know  the  prisoner,  Atzerodt,  be 
fore  meeting  him  at  the  Pennsylvania  House. 
On  the  Saturday  morning  after  the  assassin 
ation,  when  I  went  into  the  room  where  he 
was,  I  did  not  speak  to  him  immediately;  it 
was  perhaps  five  or  ten  minutes  before  I 
8 poke.  He  was  in  bed,  but  whether  undressed 
or  not  I  can  not  say.  When  I  spoke  to  him 
about  the  assassination,  he  said  it  was  an 
awful  thing,  and  that  was  about  all  he  said. 
I  did  not  see  him  after  that.  He  always 
addressed  me  as  "  Lieutenant."  It  was  about 
a  week  or  ten  days  before  the  assassination 
that  I  took  the  knife  from  his  bed.  We  had 
been  drinking  together,  as  we  lay  in  bed;  had 
had,  perhaps,  two  or  three  whisky-cocktails 
apiece.  His  words,  as  near  as  I  remember, 
when  I  gave  him  back  the  knife,  were,  "If 
this  fails,  the  other  will  riot." 

JOHN  CALDWELL. 
For  the  Prosecution. — May  25. 

I  reside  in  Georgetown.  On  the  morning 
after  the  assassination,  at  about  8  o'clock,  I 
was  at  Matthews  &  Co.' 8  store,  49  High 
Street,  Georgetown,  when  that  man,  [point 
ing  to  the  accused,  George  A.  Atzerodt,]  whom 
I  knew,  came  in ;  and,  after  my  asking  him 
how  he  was,  and  so  on,  said  he  was  going  into 
the  country,  and  asked  me  if  I  did  not  want 
to  buy  his  watch.  I  told  him  I  had  a  watch 
of  my  own,  and  did  not  want  another.  He 
then  asked  me  to  lend  him  $10.  I  told  him 
I  had  not  the  money  to  spare.  He  then  took 
his  revolver  off,  and  said,  "  Lend  me  $10,  and 
take  this  as  security,  and  I  will  bring  the 
money  or  send  it  to  you  next  week.  I  thought 
the  revolver  was  good  security  for  the  money, 
and  I  let  him  have  the  money,  expecting  him 
to  pay  it  back. 

!A  new  revolver,  loaded  and  capped,  wa,s  handed  to  the 
tness.j 

This  is  the  revolver.  It  was  loaded  and 
capped  as  it  is  now.  I  did  not  inquire  of  him 
why  it  was  loaded  and  capped. 

[The  revolver  was  offered  in  evidence.] 

Cross-examined  by  MR.  DOSTER. 

I  have  known  Atzerodt  for  three  or  four 
years.  We  were  not  on  very  intimate  terms ; 
we  were  always  civil  to  each  other  when  we 
met.  I  had  never  loaned  Atzerodt  any  money 
before. 

WILLIAM  CLEXDENIN. 

For  the  Prosecution. — May  18. 

[  V  bowie-knife  was  shown  to  the  witness.] 

I  have  had  that  knife  in  my  hands  before. 

1   saw  a  colored  woman   pick  up  something 

out  of  a  gutter,  on  F  Street,  as  I  was  passing 

down  on  the  morning  after  the  assassination. 

She  was  about  ten  feet  from. me,  and  I  went 

to  her  and  asked  what  it  was,  and  she  gave 

me  this  knife  in  a  sheath.     A  lady  in  the  third 

etorv  window  of  the  house,  next  to  Greaser's 


shoe-store,  told  me  she  saw  it  in  the  gutter, 
and  sent  the  colored  woman  down  to  get , it, 
but  that  she  did  not  want  it  to  come  into  the 
house.  I  told  her  that  1  would  take  it  to  the 
Chief  of  Police,  which  I  did. 

Cross-examined  by  MR.  DOSTER. 

It  was  about  6  o'clock  in  the  morning 
when  I  saw  the  woman  pick  it  up.  It  lay 
in  the  gutter  on  F  Street,  in  front  of  Greaser's 
house,  under  the  carriage  step,  as  if  the  in 
tention  were  to  throw  it  there.  Greaser's  is 
on  F  Street,  between  Eighth  and  Ninth,  op 
posite  the  Patent  Office. 

MARSHAL  JAMES  L.  MC?HAIL 
For  the  Prosecution. — May  18 

I  am  Provost  Marshal  of  the  State  of 
Maryland.  I  received  an  intimation  from 
the  prisoner,  Atzerodt,  that  he  desired  to  see 
me.  I  went  to  him,  and  he  stated  to  me  that, 
on  the  night  of  the  assassination  of  the 
President,  he  had  thrown  his  knife  away  in 
the  streets  of  Washington.  I  made  no  prom 
ise  or  threat  to  him,  in  any  way,  in  connec 
tion  with  the  confession. 

By  MR.  DOSTER. 

Q.  Was  he  not  in  irons  at  the  time? 

A.  Yes,  sir;  he  was  in  a  cell  in  the  prison, 
and  in  irons. 

Mr.  DOSTER.  I  respectfully  submit  that  a 
confession  made  under  such  circumstances  is 
not  admissible,  because  it  was  made  under 
duress,  which  put  the  mind  of  the  prisoner 
in  a  state  of  fear. 

The  JUDGE  ADVOCATE.  There  was  neither 
threat  nor  promise,  and  the  fact  that  the  man 
was  in  prison,  or  even  in  irons,  does  not  affect 
the  question  of  his  mental  liberty.  A  man's 
limbs  may  be  chained,  and  his  mind  be  per 
fectly  free  to  speak  the  truth,  or  to  conceal 
it,  if  he  chooses. 

Mr.  DOSTER,  in  support  of  his  objection, 
quoted  from  the  case  of  Commonwealth  v. 
Mosler,  4  B JUT'S  Reports,  265,  to  the  effect 
that  a  confession  to  an  officer,  as  well  as  to  a 
private  person,  must  be  unattended  with  any 
inducement  of  hope  or  fear,  and  must  be 
founded  on  no  question  calculated  to  entrap 
the  prisoner;  and  referred  also  to  1  Leech, 
263;  2  East's  Pleas  of  the  Crown;  2  Russell 
on  Crimes,  644;  1  Washington's  Circuit  Court 
Reports,  625;  1  Chitty's  Criminal  Law,  85;  1 
Greenleaf  on  Evidence,  214;  2  Starkie,  36. 

I  claim  that  the  prisoner  was  under  the  in 
fluence  of  fear  when  he  made  that  confession, 
and  without  that  influence  would  not  have 
made  it. 

The  JUDGE  ADVOCATE.  I  think  it  is  due  to 
the  witness  that  he  should  be  allowed  to  state 
precisely  under  what  circumstances  this  con 
fession  was  made,  and  if  there  is  a  trace  of 
fear,  or  hope,  or  incitement  of  that  kind,  I 
shall  not  insist  for  a  moment  on  the  answer 
being  heard. 


TESTIMONY  CONCERNING  GEORGE  A.  ATZERODT. 


149 


WITNESS.  I  should  state  that  a  brother-in- 
law  of  Atzerodt  is  on  my  force,  and  for  a  time 
a  brother  of  the  prisoner  was  on  it,  and  they 
repeatedly  told  me  that  Atzerodt  desired  to 
see  me.  After  consulting  with  the  Secretary 
of  War,  a  pass  was  given  me,  and  I  saw  the 
prisoner.  I  saw  him  first  on  the  gun-boat, 
and  afterward  in  his  cell.  There  was  no 
threat,  or  promise,  or  inducement  of  any 
kind  made.  On  the  contrary,  I  told  him  that 
I  could  make  no  promises  to  him ;  if  he  had 
any  thing  to  say  to  me,  he  might  say  it,  but 
I  had  nothing  to  say  to  him.  I  did  not  ask 
him  a  single  question  to  induce  him  to  make 
a  confession. 

[The  Commission  overruled  the  objection.] 

Atzerodt  said  he  had  thrown  his  knife  away, 
just  above  the  Herndon  House,  which,  I  think, 
is  on  the  corner  of  Ninth  and  F  Streets. 

Cross-examined  by  MR.  DOSTER. 

Atzerodt  stated  that  his  pistol  was  in  the 
possession  of  a  young  man  by  the  name  of 
Caldwell,  at  Matthews  &  Co.'s  store,  George 
town.  He  had  gone  to  Caldwell,  and  bor 
rowed  $10  on  it,  on  the  morning  of  the  15th 
of  April.  He  also  spoke  of  a  certain  coat 
hanging  in  the  room  at  the  Kirkwood  Ho'use, 
and  of  a  pistol,  bowie-knife,  and  other  articles 
there,  all  of  which  he  stated  belonged  to  the 
accused,  David  E.  Herold. 

Mr.  STONE.     I  must  object  to  that. 

Mr.  DOSTER.  The  answer  has  been  ob 
tained.  I  do  not  wish  to  press  it  further. 

HEZEKIAH  METZ. 
For  the  Prosecution. — May  17. 

I  reside  in  Montgomery  County,  Md.,  about 
twenty-two  miles  from  Washington  City.  On 
the  Sunday  following  the  death  of  Mr.  Lin 
coln,  the  prisoner,  George  A.  Atzerodt,  was 
at  my  house,  and  eat  his  dinner  there.  That 
is  the  man,  [pointing  to  the  accused,  George 
A.  Atzerodt]  He  was  just  from  Washington. 
We  were  inquiring  about  the  news,  and  a 
conversation  came  up  about  General  Grant's 
being  shot — for  we  had  understood  that  he 
had  been  shot  on  the  cars — when  Atzerodt 
eaid,  as  I  understood.  u  If  the  man  that  was 
to  follow  him  had  followed  him,  it  was  likely 
to  be  so." 

Atzerodt  passed  in  the  neighborhood  by  the 
name  of  Andrew  Attwood ;  that  was  the 
name  by  which  I  knew  him.  When  I  saw 
him,  he  represented  himself  as  coming  from 
Washington,  and  was  traveling  in  the  direc 
tion  of  Barnsville. 

Cross-examined  by  MR.  DOSTER. 

It  is  two  or  three  years  since  I  first  became 
acquainted  with  Atzerodt.  I  had  but  a  slight 
acquaintance  with  him;  I  knew  him  when  I 
saw  him.  He  went  by  the  name  of  Andrew 
Attwood  around  our  neighborhood,  and  he 
has  gone  by  that  name  ever  since  I  have 
known  him.  My  house  is  about  a  mile  from 


the  road  that  leads  to  Barnsville.  It  was  be 
tween  10  and  11  o'clock  on  Sunday  that  At 
zerodt  came  there;  he  remained  some  two  or 
three  hours.  Two  young  men  named  Lea- 
man  were  in  the  room  when  Atzerodt  made 
the  remark  about  somebody  following.  Gen 
eral  Grant.  I  do  not  remember  that  Atzerodt 
said  any  thing  about  the  assassination ;  they 
might  have  been  talking  about  it  before  I 
came  into  the  room.  The  conversation  about 
General  Grant  occurred  after  I  got  into  the 
room. 

SERGEANT  L.  W.  GEMMILL. 

For  the  Prosecution. — May  17. 

I  arrested  the  prisoner,  George  A.  Atzerodt, 
[pointing  to  the  accused,]  on  the  20th  of  April, 
about  4  o'clock  in  the  morning,  at  the  house 
of  a  man  named  Kichter,  near  a  place  called 
Germantown.  I  was  sent  there  for  the  pur 
pose  by  Captain  Townsend,  with  a  detail  of 
six  men.  I  first  went  to  Mr.  Purdon's  house 
to  get  him  as  guide  to  Mr.  Richter's.  When 
I  knocked  at  the  door,  Kichter  asked  me 
twice  who  it  was  before  he  would  let  me  in. 
I  told  him  to  come  and  see.  When  he  came 
to  the  door,  I  asked  him  if  there  was  a  man 
named  Attwood  there;  he  said  no,  there  was 
no  one  there;  that  he  had  been  there,  but 
had  gone  to  Frederick,  or  to  that  neighbor 
hood.  I  then  told  him  that  I  was  going  to 
search  the  house,  when  he  said  that  his 
cousin  was  up  stairs  in  bed.  His  wife  then 
spoke  up,  and  said  that  as  for  that  there  were 
three  men  there.  He  got  a  light,  and  taking 
two  men  with  me,  went  up  stairs,  where  I 
found  Atzerodt  lying  on  the  front  of  the  bed. 
I  asked  him  his  name,  and  he  gave  me  a 
name  that  I  did  not  understand,  and  which  I 
thought  was  a  fictitious  one.  I  told  him  to 
get  up  and  dress  himself;  and  I  took  him  to 
Mr.  Leaman,  a  loyal  man,  who  knew  him. 
Mr.  Leaman  told  me  it  was  the  man.  Atze 
rodt  made  no  inquiry  as  to  why  he  was  ar 
rested;  but  denied  having  given  me  a  fictitious 
name.  I  asked  him  if  he  had  left  Washington 
lately,  and  he  eaid  no.  I  then  asked  him  if  he 
had  not  something  to  do  with  the  assassina 
tion,  and  he  told  me  that  he  had  not. 

Cross-examined  by  MR.  DOSTER. 

My  orders  from  Captain  Townsend  were 
to  arrest  a  man  by  the  named  of  Attwood; 
and  I  was  ordered  to  go  to  Mr.  Purdon  and 
get  a  description  of  him,  and  to  press  him  as 
a  guide  to  the  house  of  Richter.  I  do  not 
remember  the  name  Atzerodt  gave  me,  and 
would  not  swear  that  it  was  not  "  Atzerodt;  " 
he  afterward  insisted  that  that  was  the  name 
he  gave  me.  He  spoke  in  German,  and  that 
is  the  reason  why  I  did  not  understand  the 
name. 

MARCUS  P.  NORTON. 

Recalled  for  the  Prosecution. — June  3. 

Assistant  Judge  Advocate  BURNETT  stated 
to  the  Commission  that  since  the  case  was 


150 


THE    CONSPIRACY   TRIAL. 


closed  on  the  part  of  the  prosecution,  testi 
mony  of  importance  had  been  discovered, 
tending  to  implicate  George  A.  Atzerodt, 
Michael  O'Laughlin,  and  Samuel  A.  Mudd, 
in  connection  with  J.  Wilkes  Booth. 

Mr.  Cox  objected  to  the  introduction  of  any 
evidence  that  would  affect  the  prisoners  in 
dividually,  the  understanding  being  that  the 
prosecution  was  closed,  except  as  to  evidence 
reflecting  light  on  the  general  conspiracy. 
It  was  contrary  to  the  practice  of  civil  courts 
to  allow  the  introduction  of  testimony  after 
the  prosecution  had  been  closed,  except  what 
was  strictly  in  rebuttal. 

Assistant  Judge  Advocate  BURNETT  stated 
that  in  military  courts,  even  after  the  case 
had  been  closed  on  both  sides,  it  was  allow 
able  to  call  new  witnesses  at  the  discretion 
of  the  Court. 

The  Commission  decided  to  admit  the  testi 
mony. 

I  reside  in  the  city  of  Troy,  New  York. 
From  about  the  10th  of  January  until  about 
the  10th  of  March,  I  was  stopping  at  the 
National  Hotel  in  this  city.  I  knew  J.  Wilkes 
Booth,  having  seen  him  several  times  at  the 
theater.  I  saw  the  prisoners,  George  A.  At 
zerodt  and  Michael  O'Laughlin,  prior  to  the 
inauguration  of  President  Lincoln.  I  saw 
Atzerodt  twice,  and  O'Laughlin  three  or  four 
times,  in  conversation  with  Booth.  On  one 
occasion  I  accidentally  heard  some  conversa 
tion  between  Atzerodt  and  Booth,  as  I  sat  on 
the  same  seat  with  them ;  it  was  on  the  even 
ing  of  either  the  2d  or  3d  of  March  last;  I 
think  the  3d.  I  can  not  give  the  precise 


language  used  in  the  conversation,  but  the 
substance  of  it  was,  that  if  the  matter  suc 
ceeded  as  well  with  Mr.  Johnson  as  it  did 
with  old  Buchanan,  their  party  would  get 
terribly  sold. 

Cross-examined  by  MR.  DOSTER. 

The  conversation  between  Atzerodt  and 
Booth  took  place  in  the  rotunda  office  of 
the  National  Hotel,  early  in  the  evening  as 
I  was  sitting,  perhaps,  within  two  or  three 
feet  of  them.  I  remember  the  prisoner,  At 
zerodt,  by  his  countenance  and  general  feat 
ures,  though  I  do  not  think  he  had  as  much 
of  a  scowl  on  his  face  as  he  has  now. 

Recalled  for  the  Prosecution. — June  8. 

Cross-examined  by  MR.  DOSTER. 
I  have  seen  Booth  play  in  Washington,  in 
New  York,  and  once,  I  think,  in  Boston,  but  I 
can  not  recall  how  many  times,  nor  the  pieces 
in  which  I  saw  him.  At  the  time  of  hearing 
the  conversation  between  Booth  arid  Atzerodt 
at  the  National  Hotel,  I  did  not  consider  it  as 
having  reference  to  an  attempt  to  poison  Mr. 
Johnson;  but  the  assassination  of  the  Presi 
dent,  and  Booth  being  coupled  with  it,  is  what 
has  turned  my  attention  to  the  conversation. 
See  also  the  testimony  of 

Louis  J.  Weichmanii pages  113,  118 

J.  M.  Lloyd page  130 


Anna  E.  Surratt 

Honora   Fitzpatrick. 

Eliza  Holahan 

John  Holahan 

Eaton  G.  Homer...., 


130 
132 
132 
139 
234 


DEFENSE  OF  GEORGE  A. ATZERODT, 


CAPTAIN  FRANK  MONROE,  U.  S.  N. 

For  the  Defense.— May  30. 

By  MR.  DOSTER. 

I  had  the  custody  of  the  prisoner  at  the  bar 
on  board  the  monitors  Saugus  and  Montauk. 

Mr.  DOSTER.  Before  going  further  with 
the  examination  of  the  witness,  I  wish  to  sub 
mit  an  application  of  the  prisoner  in  writing. 

[The  paper  was  handed  to  the   Judge  Advocate,  who, 
having  r«ad  it,  said  :1 

This  is  a  proposal  on  the  part  of  the  pris 
oner,  Atzerodt,  that  his  confessions  made  to 
the  witness  shall  be  heard  by  this  Court  as 
testimony  in  his  favor — confessions  in  regard 
to  which  no  evidence  whatever  has  been  in 
troduced  by  the  Government.  I  can  not 
understand  on  what  grounds  such  an  applica 
tion  can  be  urged. 


Mr.  DOSTER.  The  prisoner  desires  to  make 
a  full  statement  of  his  guilt  in  this  transac 
tion,  if  there  is  any  guilt,  and  of  his  inno 
cence,  if  there  is  any  evidence  of  it.  He  asks 
his  statement  to  be  placed  on  record,  because 
he  has  been  debarred  from  calling  any  other 
prisoners  who  might  be  his  witnesses,  for  the 
reason  that  they  are  co-defendants.  He 
therefore  asks  that  he  may  be  allowed  to 
speak  through  Captain  Monroe,  as  he  would 
otherwise  speak  through  one  of  his  co-defend 
ants.  1  ask  this  as  a  matter  of  fairness  and 
liberality  at  the  hands  of  the  Commission. 

The  JUDGE  ADVOCATE.  It  is  greatly  to  be 
deplored  that  the  counsel  for  the  accused  will 
urge  upon  the  Court  proposals  which  they 
know  to  be  contrary  to  law. 

Mr.  DOSTER.  I  have  no  more  to  ask  the 
witness  then. 


DEFENSE  OF  GEORGE  A.  ATZEKODT. 


151 


MATTHEW  J.  POPE. 

For  the  Defense. — June  2. 

By  MR.  DOSTER. 

I  live  at  the  Navy  Yard,  and  keep  a  livery 
stable  ;  until  recently  I  kept  a  restaurant.  A 
few  days  before  the  assassination  of  the  Presi 
dent,  perhaps  about  the  12th  of  April — I  do 
not  know  the  exact  day — a  gentleman  called 
at  my  stable  to  sell  a  bay  horse;  it  was  a 
large-  bay  horse,  and  blind  of  one  eye. 

[The  prisoner,  George  A.  Atzerodt  was  desired  to  stand 
up  for  identification.] 

That  man  has  something  of  the  same  feat 
ures;  he  was  very  much  such  a  looking  man; 
but  if  it  is  the  same,  he  is  not  near  so  stout  as 
when  he  brought  the  horse  to  my  stable.  I 
can  not  say  positively  that  it  is  the  same. 
There  are  many  applications  at  my  stable  to 
buy  and  sell  horses,  that  I  did  not  take  much 
notice  of  him.  I  told  him  I  did  not  want  to 
buy  the  horse;  that  I  had  more  horses 
than  I  had  use  for.  It  was  some  time  after 
12  or  1  o'clock  at  noon  that  he  came.  The 
horse  was  put  into  my  stable,  and  the  gentle 
man  went  over  to  my  restaurant  and  took  a 
drink.  He  left  there  with  a  man  named  Barr, 
a  wheelwright  in  the  Navy  Yard.  They 
came  back  together,  and  the  gentleman  took 
his  horse  out  and  rode  him  away.  The  horse 
was  in  the  stable,  I  think,  some  two  or  three 
hours.  Barr  was  not  sober  at  the  time;  he 
had  been  drinking  a  little. 

JOHN  H.  BARR, 

For  the  Defense. — June  5. 

By  MR.  DOSTER. 

I  have  seen  Atzerodt,  the  prisoner  at  the 
bar,  once  before.  I  was  coming  from  my 
work  at  the  Navy  Yard  one  evening,  and 
stopped  at  Mr.  Pope's  restaurant,  and  there 
met  this  gentleman.  I  did  not  know  him  at 
the  time,  but  we  had  several  drinks  together. 
I  proposed  to  him  to  go  home  and  take  supper 
with  me,  and  he  did  so.  After  supper,  we 
went  back  to  Mr.  Pope's  restaurant,  and 
had,  I  think,  a  couple  of  drinks.  We  then 
went  out,  returned  to  the  restaurant  again, 
and  took  two  more  glasses,  and  from  there 
went  to  Mr.  Pope's  stable.  The  gentleman 
took  his  horse  out,  and  I  saw  him  get  on  and 
ride  off.  That  is  the  last  I  saw  of  him.  By 
referring  to  my  book,  I  can  tell  the  exact  day 
on  which  this  occurred,  because  I  know  the 
work  that  I  did  that  day;  I  made  two  spring 
blocks  for  Sanderson  &  Miller.  I  find  it  was 
the  12th  of  April. 

JAMES  KELLEHER. 

For  the  Defense.— May  30. 
By  MR.  DOSTER. 

I  am  one  of  the  proprietors  of  the  livery- 
stable  on  Eighth  and  E  Streets.  On  the  14th 
of  April  last,  about  half-past  2  in  the  day,  I 


let  the  prisoner,  Atzerodt,  [pointing  to  the 
accused,  George  A.  Atzerodt,]  have  out  of  my 
stable  a  small  bay  mare,  sixteen  and  a  half 
hands  high.  He  paid  me  five  dollars  for  the 
hire.  The  horse  was  returned,  to  the  best  of 
my  knowledge,  between  9  and  half-past  9  tha- 
night. 

Q.  When  Atzerodt  engaged  the  horse,  did 
you  have  a  conversation  with  him  ? 

A.  Yes,  sir. 

Q.  State  what  that  conversation  was. 

Assistant  Judge  Advocate  BURNETT  ob 
jected  to  the  question  as  incompetent. 

The  question  was  waived. 

Atzerodt  wrote  his  name  on  the  slate  in  a 
tolerably  good  hand;  and  he  gave  me  sev 
eral  references  willingly.  He  first  gave  a 
number  of  persons  in  Maryland.  He  said  he 
knew  a  good  many  persons  there,  and  that  he 
was  a  coach-maker  by  trade.  Stanley  Hig- 
gins  was  one  to  whom  he  referred;  I  can  not 
recall  any  other.  He  also  gave  me  the  name 
of  John  Cook  in  Washington  as  a  reference, 
and  several  other  names  in  Washington,  but 
I  do  not  remember  them. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  was  not  there  when  the  horse  was  re 
turned.  When  I  went  to  the  stable  next 
morning,  the  horse  was  there. 

SAMUEL  SMITH. 

For  the  Defense. — May  30. 

By  MR.  DOSTER. 

I  am  a  stable-boy  at  Mr.  Kelleher's  stable. 
I  was  at  the  stable  on  the  night  of  the  14th  of 
April  last.  The  bay  mare  that  was  let  out 
about  2  o'clock  in  the  afternoon  was  returned 
n  the  course  of  the  evening ;  to  the  best  of 
ny  knowledge,  it  was  about  11  o'clock.  She 
was  about  in  the  same  condition  as  when  she 
was  taken  out 

^•oss-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  did  not  notice  the  person  who  brought 
back  the  mare;  there  was  a  little  light  in  the 
stable,  but  it  was  very  dim ;  and  there  was 
no  light  on  the  sidewalk.  The  man  stopped 
outside  the  door,  and  I  went  out  there  and 
>rought  the  mare  in.  It  was  by  feeling  her 
hat  I  could  tell  she  had  not  been  ridden  hard. 

LEONARD  J.  FARWELL. 

For  the  Defense. — June  3. 

By  MR.  DOSTER. 

On  the  evening  of  the  14th  of  April  last, 
>n  leaving  Ford's  Theater,  I  went  immedi 
ately  to  the  Kirk  wood  House,  to  the  room  of 
Vice-President  Johnson.  1  should  think  it 
vas  between  10  and  half-past  10  o'clock.  I 
bund  the  room  door  locked.  I  rapped,  but 
receiving  no  answer,  I  rapped  again,  and  said. 


152 


THE    CONSPIRACY    TRIAL. 


in  a  loud  voice,  "Governor  Johnson,  if  you 
are  in  the  room,  I  must  see  you."  1  believe 
the  door  was  locked,  but  am  not  certain.  ] 
can  not  say  whether  I  took  hold  of  the  han 
dle  or  not.  I  did  not  see  any  one  apparently 
lying  in  wait  near  Mr.  Johnson's  door. 

I  remained  in  Mr.  Johnson's  room  about 
half  an  hour.  I  took  charge  of  the  door 
and  locked  and  bolted  it  on  the  inside.  A 
number  of  persons  came  to  the  door,  but  I 
did  not  allow  any  of  them  to  come  in,  unless 
he  was  some  gentleman  personally  known  to 
the  Vice-President.  I  also  rang  the  bell  and 
had  a  guard  placed  at  the  door. 

[The  witness  was  here  requested  to  look  at  the  prisoner 
George  A.  Atzerodt.] 

I  do  not  know  that  I  have  seen  the  prisoner 
before. 

Miss  JANE  HEROLD. 

For  the  Defense. — May  30. 
By  MR.  DOSTER. 

1  am  the  sister  of  David  E.  Herold,  the 
prisoner  at  the  bar. 

[Exhibiting  to  the  witness  the  black  coat  found  at  the 
Kirkwood  House,  also  the  handkerchief  marked  "  II."" 

I  think  I  never  saw  that  coat  in  the  pos 
session  of  my  brother.  The  handkerchief 
does  not  belong  to  him. 

F.  H.  DOOLEY. 

For  the  Defense. — May  31. 

By  MR.  DOSTER. 

I  am  an  apothecary,  on  the  corner  of 
Seventh  Street  and  Louisiana  Avenue.  The 
tooth-brush  and  liquorice  found  at  the  Kirk- 
wood  House  have  trade-marks  on  them  that 
I  am  positive  do  not  belong  to  my  estab 
lishment 

SOMERSET  LEAMAN. 

For  the  Defense.— May  30. 

By  MR.  DOSTER. 

I  have  known  the  prisoner,  George  A. 
Atzerodt,  ever  since  he  was  a  boy.  I  was  at 
the  house  of  Hezekiah  Metz  on  the  Sunday 
morning  following  the  assassination  of  the 
President,  and  met  Atzerodt  there.  As  I 
approached  him,  I  said,  in  the  way  of  a 
joke,  "  Are  you  the  man  that  killed  Abe 
Lincoln?"  "Yes,"  said  he,  and  laughed.  I 
said,  "  Well,  Andrew" — he  went  by  the  name 
of  Andrew  there — "I  want  to  know  the 
truth  of  it;  is  it  so?"  I  asked  him  if  the 
President  was  assassinated,  and  he  said,  "Yes, 
it  is  so;  and  he  died  yesterday  evening  about 
3  o'clock."  I  then  asked  him  if  it  was  true 
that  Mr.  Seward's  throat  was  cut,  and  two 
of  his  sons  stabbed,  and  he  replied,  "  Yes, 
Mr.  Seward  was  stabbed,  or  rather  cut  at  the 
throat,  but  not  killed,  and  two  of  his  sons 
were  stabbed."  I  then  asked  him  if  what 
we  heard  about  General  Grant  was  correct, 
that  he  was  assassinated  on  the  same  night. 
He  answered,  "No,  I  don't  know  whether 


that  is  so  or  not;  I  don't  suppose  it  is  so; 
if  it  had  been,  I  should  have  heard  it." 

While  we  were  at  the  dinner-table,  my 
brother  asked  him  the  question  again, 
whether  General  Grant  was  killed  or" not, 
and  he  said,  "  No,  I  don't  suppose  he  was; 
if  he  was  killed,  he  would  have  been  killed 
probably  by  a  man  that  got  on  the  same 
car" — or  the  same  train,  I  do  not  remember 
which — "that  Grant  got  on." 

I  was  not  in  Atzerodt's  company  .more 
than  half  an  hour,  and  that  was  about  all 
that  passed  in  reference  to  this  in  my  presence. 

I  thought  Atzerodt  seemed  somewhat  con 
fused  at  the  dinner-table.  He  had  been 
paying  his  addresses  to  the  daughter  of  Mr. 
Metz,  and  it  appeared  that  she  had  been 
showing  him  the  cold  shoulder  that  dayT  and 
he  was  down  in  the  mouth  in  consequence. 
There  was  no  remark  made  at  the  dinner- 
table  that  I  did  not  hear. 

Atzerodt's  father  had  settled  in  our  neigh 
borhood,  but  moved  away  when  Atzerodt 
was  quite  a  boy,  and  I  had  seen  but  little  of 
him  until  the  last  year  or  two.  He  visited 
among  the  neighbors  there,  many  of  whom 
were  respectable  people. 

JAMES  E.  LEAMAN. 

For  the  Defense.— May  30. 

By  MR.  DOSTER. 

I  have  known  the  prisoner,  George  A. 
Atzerodt,  for  about  two  years.  I  was  at  the 
house  of  Mr.  Metz  on  the  Sunday  morning 
following  the  assassination.  I  broached  the 
subject  of  General  Grant  being  assassinated, 
and  asked  him  whether  it  was  so  or  not.  He 
said  he  did  not  suppose  it  was;  and  he 
added,  "  If  it  is  so,  some  one  must  have  got  on 
he  same  cars  that  he  did."  That  was  all  the 
:onversation  that  I  had  with  him,  with  the 
exception  that  when  he  and  I  were  out  in 
,he  yard  he  said — 

Mr.  DOSTER.  That  is  unnecessary ;  you 
tieed  not  state  what  he  said  in  the  yard. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

Q.  Go  on  and  state  what  he  said  to  you  in 
he  yard. 

A.  He  said,  "  0,  my !  what  a  trouble  I 
ee."  I  said  to  him,  "  Why,  what  have  you 
o  trouble  you  ?"  Said  he,  "  More  than  I 
vill  ever  get  shut  of." 

By  MR.  DOSTER. 

Q.  That  was  immediately  after  you  had 
>een  speaking  of  the  assassination,  was  it  ? 

A.  No,  sir;  some  time  afterward.  I  took 
t  for  granted — 

Assistant  Judge  Advocate  BURNETT.  You 
need  not  state  what  you  took  for  granted, 
jive  the  words,  and  nothing  else. 

A.  That  was  about  all  he  said  at  that  time. 

Atzerodt  had  been  paying  his  addresses  to 
I r.  Metz's  daughter,  and  she  had  slighted  him 
ome  time  before  he  went  out  into  the  vard. 


DEFENSE  OF  GEORGE  A.  ATZERODT. 


153 


HARTMAN  RICHTER. 

For  the  Defense. — May  31. 
By  MR.  DOSTER. 

I  live  in  Montgomery  County,  Maryland, 
and  am  a  cousin  of  the  prisoner,  George  A. 
Atzerodt.  He  came  to  my  house  about  2  or 
3  o'clock  on  Sunday  afternoon.  I  met  him 
in  the  morning,  on  my  road  to  church.  I 
did  not  have  much  conversation  with  him, 
and  I  noticed  nothing  peculiar  about  him. 
lie  remained  at  my  house  from  Sunday  till 
Thursday  morning,  and  occupied  himself 
with  walking  about,  working  in  the  garden  a 
little,  and  going  among  the  neighbors.  He 
did  not  attempt  to  get  awa}T,  or  to  hide 
himself.  When  he  was  arrested  he  seemed 
very  willing  to  go  along.  He  had  on  a  kind 
of  gray  overcoat  when  he  came  to  my  house. 

SAMUEL  MCALLISTER. 

For  the  Defense,— May  30. 

By  MR.  DOSTER. 

During  the  month  of  April  I  saw  a  pistol 
and  a  dirk  in  Atzerodt's  possession.  He 
gave  them  to  me  to  keep  for  him. 

[The  knife  and  pistol  found  at  the  Kirkwood  House 
were  exhibited  to  the  witness.] 

Those  are  not  the  knife  and  pistol. 

[The  knife  found  near  F  and  Ninth  Streets  on  the  mom- 
ing  of  the  15th  of  April  was  exhibited.] 

That  looks  very  much  like  the  knife ;  it 
was  a  knife  of  that  description. 

[Exhibiting  to  the  witness  the  pistol  identified  by  John 
Caldwell,  on  which  he  loaned  $10.] 

That  looks  very  much  like  it. 

On  the  evening  of  the  14th  of  April,  at 
about  10  o'clock,  he  rode  up  to  the  door 
[Pennsylvania  House]  and  called  the  black 
boy  out  to  hold  his  horse.  I  did  not  take 
particular  notice  of  him,  or  notice  whether 
he  was  excited  or  not. 

Q.  Do  you  know  any  thing  about  his  rep 
utation  for  courage? 

Assistant  Judge  Advocate  BIXGHAM.  I 
object  to  that;  I  do  not  think  we  are  going 
to  try  his  character  for  courage. 

Mr.  DOSTER.  May  it  please  the  Court,  I 
intend  to  show  that  this  man  is  a  constitu 
tional  coward;  that  if  he  had  been  assigned 
the  duty  of  assassinating  the  Vice-President, 
he  never  could  have  done  it;  and  that,  from 
his  known  cowardice,  Booth  probably  did 
not  assign  him  to  any  such  duty.  Certainly 
it  is  just  as  relevant  as  any  thing  can  be. 


Assistant  Judge  Advocate  BINGHAM.  If 
the  counsel  wishes  to  prove  that  the  prisoner, 
Atzerodt,  is  a  coward,  I  will  withdraw  my 
objection. 

WITNESS.  I  know  nothing  of  his  reputa 
tion  for  cowardice,  save  what  I  have  heard 
from  others.  I  have  heard  men  say  that  he 
would  not  resent  an  insult. 

ALEXANDER  BRAWNEH. 

For  the  Defense. — June  8. 
By  MR.  DOSTER. 

I  live  in  Port  Tobacco,  Md.  I  have  known 
the  prisoner,  Atzerodt,  six  or  eight  years. 
He  was  at  Port  Tobacco  about  the  last  of 
February  or  the  beginning  of  March.  I  think 
he  came  from  Bryantown;  he  rode  a  sorrel 
horse.  I  had  some  business  in  the  country, 
and  he  went  along  with  me. 

I  never  considered  Atzerodt  a  courageous 
man,  by  a  long  streak.  I  have  seen  him  in 
scrapes,  and  I  have  seen  him  get  out  of 
them  very  fast.  I  have  seen  him  in  bar-room 
scrapes,  little  scrapes,  and  where  pistols  were 
drawn,  and  he  generally  got  out  of  the  way, 
and  made  pretty  fast  time.  His  reputation 
is  that  of  a  notorious  coward. 

Louis  B.  HARKINS. 

\ 

For  the  Defense. — June  8. 

By  MR.  DOSTER. 

I  have  known  Atzerodt  for  probably  ten 
years.  He  was  down  at  Port  Tobacco  about 
the  latter  part  of  February  or  the  beginning 
of  March.  I  think  I  saw  him  for  a  day  or 
two.  He  is  looked  upon  down  there,  by  folks 
that  know  him,  as  a  good-natured  kind  of  a 
fellow.  We  never  gave  him  credit  down  our 
way  for  much  courage.  I  call  to  mind  two 
difficulties  in  which  I  saw  him — one  hap 
pened  in  my  shop,  and  the  other  in  an  oys 
ter  saloon — in  both  of  which  I  thought  he 
lacked  courage. 

WASHINGTON  BRISCOE. 

For  the  Defense. — May  30. 

By  MR.  DOSTER. 

I  have  known  the  prisoner,  Atzerodt,  six 
or  seven  years  at  Port  Tobacco.  He  has  al 
ways  been  considered  a  man  of  little  courage, 
and  remarkable  for  his  cowardice. 


154 


THE    CONSPIRACY   TRIAL. 


TESTIMONY  CONCERNING  LEWIS  PAYNE. 


MKS.  MARTHA  MURRAY. 
For  the  Prosecution. — May  19. 

My  husband  keeps  the  Herndon  House, 
corner  of  Ninth  and  F  Streets,  opposite  the 
Patent  Office,  cat-a-cornered.  The  only  one 
of  the  prisoners  I  recognize  as  having  seen 
before  is  that  man,  [pointing  to  the  accused, 
Lewis  Payne.]  I  think  I  have  seen  him; 
his  features  are  familiar  to  me,  but  I  would 
not  say  for  certain.  He  was  two  weeks  in 
our  house,  and  he  left  on  the  Friday,  the  day 
of  the  assassination.  He  left  on  the  14th 
day,  about  4  o'clock.  We  have  dinner  at 
half-past  4,  and  this  gentleman  came  into 
the  sitting-room  and  said  he  was  going  away, 
and  wanted  to  settle  his  bill;  and  he  wished 
to  have  dinner  before  the  regular  dinner;  so 
I  gave  orders  for  the  dinner  to  be  cut  off 
and  sent  up  to  him.  He  went  into  the 
dining-room  to  eat  his  dinner,  and  I  have 
not  seen  him  since. 

I  do  not  recognize  either  of  the  prisoners  as 
having  visited  this  man.  I  remember  that 
he  once  came  in  with  two  gentlemen  to  sup 
per.  I  do  not  remember  that  any  one  spoke 
to  me  about  engaging  a  room  for  this  man. 
I  am  spoken  to  by  so  many  that  I  could 
not  remember  any  particular  circumstance 
of  that  kind. 

WM.  II.  BELL  (colored.) 
For  the  Prosecution. — May  19. 

I  live  at  the  house  of  Mr.  Seward,  Secre 
tary  of  State,  and  attend  to  the  door.  That 
man  [pointing  to  the  accused,  Lewis  Payne] 
oime  to  the  house  of  Mr.  Seward  on  the 
night  of  the  14th  of  April.  The  bell  rang 
and  I  went  to  the  door,  and  that  man  came  in. 
He  had  a  little  package  in  his  hand  ;  he  said 
it  was  medicine  for  Mr.  Seward  from  Dr. 
Verdi,  and  that  he  was  sent  by  Dr.  Verdi  to 
direct  Mr.  Seward  how  to  take  it.  He  said 
he  must  go  up.  I  told  him  that  he  could  not 
go  up;  then  he  repeated  the  words  over,  and 
was  a  good  while  talking  with  me  in  the  hall. 
He  said  he  must  go  up;  he  must  see  him. 
He  talked  very  rough  to  me  in  the  first  place. 
I  told  him  he  could  not  see  Mr.  Seward; 
that  it  was  against  my  orders  to  let  any  one 
go  up,  and  if  he  would  give  me  the  medi 
cine  and  tell  me  the  directions.  I  would  take 
it  up,  and  tell  Mr.  Seward  how  to  take  it. 
He  was  walking  slowly  all  the  time,  listen 
ing  to  what  I  had  to  say.  He  had  his  right 
hand  in  his  coat-pocket,  and  the  medicine  in 
his  left.  He  then  walked  up  the  hall  toward 
the  steps  I  had  spoken  pretty  rough  to 


him,  and  when  I  found  out  that  he  would 
go  up,  I  asked  him  to  excuse  me.  He  said, 
"01  I  know;  that's  all  right."  I  thought 
he  might,  perhaps,  be  sent  by  Dr.  Verdi,  and 
he  might  go  up  and  tell  Mr.  Seward  that  I 
would  not  let  him  go  up,  or  something  of 
that  kind.  I  got  on  the  steps  and  went  up 
in  front  of  him.  As  he  went  up  I  asked  him 
not  to  walk  so  heavy.  He  met  Mr.  Freder 
ick  Seward  on  the  steps  this  side  of  his 
father's  room.  He  told  Mr.  Frederick  that 
he  wanted  to  see  Mr.  Seward.  Mr.  Frederick 
went  into  the  room  and  came  out,  and  told 
him  that  he  could  not  see  him;  that  his 
father  was  asleep,  and  to  give  him  the 
medicine,  and  he  would  take  it  to  him. 
That  would  not  do;  he  must  see  Mr.  Seward. 
He  must  see  him;  he  said  it  in  just  that 
way.  Mr.  Frederick  said,  "You  can  not  see 
him."  He  kept  on  talking  to  Mr.  Frederick, 
saying,  that  he  must  see  him,  and  then  Mr. 
Frederick  said,  "I  am  the  proprietor  here, 
and  his  son ;  if  you  can  not  leave  your  mes 
sage  with  me,  you  can  not  leave  it  at  all." 
Then  he  had  a  little  more  talk  there  for  a 
while,  and  stood  there  with  the  little  package 
in  his  hand.  Mr.  Frederick  would  not  let 
him  see  Mr'  Seward  no  way  at  all,  and  then 
he  started  toward  the  step  and  said,  ''Well, 
if  I  can  not  see  him — "  and  then  he  mum 
bled  some  words  that  I  did  not  understand, 
and  started  to  come  down.  I  started  in  front 
of  him.  I  got  down  about  three  steps,  I  guess, 
when  I  turned  around  to  him  and  said, 
"  Do  n't  walk  so  heavy."  Then  by  the  time  I 
turned  around  to  make  another  step,  he  had 
jumped  back  and  struck  Mr.  Frederick.  By 
the  time  I  could  look  back,  Mr.  Frederick 
was  falling;  he  threw  up  his  hands  and  fell 
back  in  his  sister's  room;  that  is  two  doors 
this  side  of  Mr.  Seward's  room.  Then  I  ran 
down  stairs  and  out  to  the  front  door,  hal 
looing  "murder,"  and  then  ran  down  to  Gen 
eral  Augur's  head-quarters.  I  did  not  see 
the  guard,  and  ran  back  again.  By  that  time 
there  were  three  soldiers  who  had  run  out  of 
the  building  and  were  following  me.  When 
I  got  way  back  to  the  house,  turning  the 
corner  there,  I  saw  this  man  run  out  and  get 
on  his  horse.  He  had  on  a  light  overcoat, 
but  he  had  no  hat  on  when  he  came  out 
arid  got  on  his  horse.  I  did  not  see  his  horse 
when  he  came  to  the  house,  and  did  not 
know  he  had  a  horse  until  I  saw  him  get 
on  it.  I  hallooed  to  the  soldiers,  ''There  he 
is,  going  on  a  horse!"  They  slacked  their 
running,  and  ran  out  into  the  street,  and  did 
not  run  any  more  until  he  got  on  his  horse 
and  started  off.  I  followed  him  up  as  far  as 


TESTIMONY   CONCERNING  LEWIS   PAYNE. 


155 


I  Street  and  Fifteen-and-a-half  Street,  and  he 
turned  right  out  into  Vermont  avenue,  where 
I  lost  sight  of  him.  He  rode  a  bay  mare ;  it 
was  a  very  stout  animal,  and  did  not  appear 
to  be  a  very  high  horse.  He  did  not  go  very 
fast  until  he  got  to  I  Street.  I  must  hav 
been  within  twenty  feet  of  him,  but  at  I 
Street  he  got  away  from  me  altogether. 

I  do  not  know  what  he  struck  Mr.  Fred 
erick  Seward  with.  It  appeared  to  be  round 
and  to  be  mounted  all  over  with  silver,  anc 
was  about  ten  inches  long.  I  had  taken  i 
for  a  knife,  but  they  all  said  afterward  it  was 
a  pistol.  I  saw  him  raise  his  hand  twice  to 
strike  Mr.  Frederick,  who  then  fell.  I  did 
not  wait  any  longer,  but  turned  round  and 
went  down  stairs.  When  he  jumped  round 
he  just  said,  "You,"  and  commenced  hitting 
him  on  the  head;  but  I  had  hardly  missed 
him  from  behind  me  until  I  heard  him  say 
that  word. 

I  never  saw  this  man  about  the  door  that  I 
know  of,  nor  did  I  see  any  person  on  the 
pavement  when  I  carne  out. 

Cross-examined  by  MR.  DOSTER. 

I  do  not  know  how  old  I  am;  I  guess  I 
am  between  nineteen  and  twenty.  I  was  at 
school  four  or  five  years.  I  have  been  at 
Mr.  Seward's  nine  months,  and  am  second 
waiter.  The  talk  with  the  man  was  inside; 
he  came  in  and  1  closed  the  door.  He  had  a 
very  fine  voice. 

I  noticed  his  hair  and  his  pantaloons,  and 
I  noticed  his  boots  that  night.  He  talked  to 
Mr.  Frederick  at  least  five  minutes  while  up 
there  near  his  father's  door,  in  the  third  story. 
He  had  on  very  heavy  boots  at  the  time,  black 
pants,  light  overcoat,  and  a  brown  hat.  His 
face  was  very  red  at  the  time  he  came  in;  and 
he  had  very  black,  coarse  hair. 

I  saw  the  same  boots  on  him  the  night  they 
captured  him,  and  the  same  black  pants. 

The  first  time  I  saw  the  prisoner  after  that 
night  was  on  the  17th  of  April.  They  sent 
for  me  about  3  o'clock  in  the  morning  to  go 
down  to  General  Augur'a  head-quart <*rs.  A 
Colonel  there,  with  large  whiskers  and  mous 
tache,  [Colonel  H.  H.  Wells,]  asked  me  to 
describe  this  man.  I  told  him  he  had  black 
hair,  a  thin  lip,  very  fine  voice,  very  tall,  and 
broad  across  the  shoulders,  so  I  took  him  to 
be.  There  were  twenty  or  thirty  gentlemen 
in  the  room  at  the  time,  and  he  asked  me 
if  any  gentleman  there  had  hair  like  him, 
and  I  told  him  there  was  not.  He  then  said, 
"1  will  bring  a  man  in  here  and  show  him 
to  you."  I  was  leaning  down  behind  the  desk 
so  that  I  could  not  be  seen.  The  light  was 
then  put  up,  and  a  good  many  men  walked 
into  the  room  together.  I  walked  right  up  to 
this  man,  and  put  my  finger  right  here,  [on  the 
lip,]  and  told  him  I  knew  him;  that  he  was 
the  man.  Nobody  had  offered  me  any  money 
for  giving  the  information,  and  no  threats  had 
been  made  to  me. 

When    he   struck   Mr.   Frederick  Seward, 


land  I  ran  out,  I  did  not  observe  any  horse; 
!  but  when  I  saw  him  run  out  of  the  house,  I 
i  followed  him  to  I  Street;  it  seems  to  me  he 

went  very  slow,  because  I  kept  up  with  him 

till  he  got  to  I  Street. 

WILLIAM  H.  BELL. 

Recalled  for  the  Prosecution. — May  19. 

[By  direction  of  the  Judge  Advocate  the  handcuffs 
were  removed  from  the  prisoner  Payne,  who  put  on  the 
dark-gray  coat,  and  over  it  the  white  and  brown  mixed 
coat,  and  the  hat  identified  by  Colonel  Wells.] 

When  he  came  to  Mr.  Seward's  he  had  on 
that  coat,  and  that  is  the  very  same  hat  he 
had  on ;  one  corner  of  it  was  bent  down  over 
his  eye.  He  had  on  a  white  collar,  and  looked 
quite  nice  to  what  he  looks  now.  He  had 
the  same  look  as  he  has  now,  but  he  looked 
pretty  fiery  out  of  his  eyes  at  ine,  the  same 
way  he  looks  now. 

SERGEANT  GEORGE   F.  KOBINSON. 

For  the  Prosecution. — May  19. 

On  the  14th  of  April  last  I  was  at  the  resi- 
denc\£  of  Mr.  Seward,  Secretary  of  State, 
acting  as  attendant  nurse  to  Mr.  Seward,  who 
was  confined  to  his  bed  by  injuries  received 
from  having  been  thrown  from  his  carriage. 
One  of  his  arms  was  broken  and  his  jaw  frac 
tured. 

That  man  [pointing  to  the  accused,  Lewis 
Payne]  looks  like  the  man  that  came  to  Mr. 
Seward's  house  on  that  Friday  night.  I 
heard  a  disturbance  in  the  hall,  and  opened 
the  door  to  see  what  the  trouble  was;  and  as 
I  opened  the  door  this  man  stood  close  up  to 
it.  As  soon  as  it  was  opened,  he  struck  me 
with  a  knife  in  the  forehead,  knocked  me 
partially  down,  and  pressed  by  me  to  the  bed 
of  Mr.  Seward,  and  struck  him,  wounding  him. 
As  soon  as  I  could  get  on  my  feet,  I  en 
deavored  to  haul  him  off  the  bed,  and  then 
lie  turned  upon  me.  In  the  scuffle,  some  one 
[Major  Seward]  came  into  the  room  and 
clinched  him.  Between  the  two  of  us  we  got 
him  to  the  door,  or  by  the  door,  and  he, 
inclinching  his  hands  from  around  my  neck, 
struck  me  again,  this  time  with  his  fist, 
^nocking  me  down,  and  then  broke  away 
from  Major  Seward  and  ran  down  stairs. 

I  saw  him  strike  Mr.  Seward  with  the  same 
*nife  with  which  he  cut  my  forehead.  It 
was  a  large  knife,  and  he  held  it  with  the 
Dlade  down  below  his  hand.  I  saw  him  cut 
Mr.  Seward  twice  that  I  am  sure  of;  the 
irst  time  he  struck  him  on  the  right  cheek, 
and  then  he  seemed  to  be  cutting  around  his 
neck.  I  did  not  hear  the  man  say  any 
hing  during  this  time. 

I  afterward  examined  the  wounds,  and 
bund  one  cutting  his  face  from  the  right 
cheek  down  to  the  neck,  and  a  cut  on  his 
neck,  which  might  have  been  made  by  the 
same  blow,  as  Mr.  Seward  was  partially 
itting  in  bed  at  the  time;  and  another  on 
,he  left  side  of  the  neck.  Those  were  all  I 


156 


THE    CONSPIRACY   TRIAL. 


noticed,  but  there  may  have  been  more,  as 
it  was  all  bloody  when  I  saw  it.  Mr.  Sew- 
ard  received  all  his  stabs  in  bed;  but  after 
the  man  was  gone,  and  I  went  back  to  the 
bed,  I  found  that  he  had  rolled  out,  and  was 
lying  on  the  floor. 

I  did  not  see  Mr.  Frederick  Seward  down 
on  the  floor;  the  first  I  saw  of  him  was  after 
the  man  was  gone;  when  I  came  back  into 
the  room  he  was  inside  the  door,  standing  up. 
The  man  went  down  stairs  immediately  after 
he  unwound  his  arm  from  round  my  neck, 
and  struck  me  with  his  fist.  I  did  not  see 
him  encounter  Major  Seward. 

After  he  was  gone  we  picked  up  a  revolver, 
or  parts  of  one,  and  his  hat. 

[A  slouch  felt  hat  was  exhibited  to  the  witness.] 

I  should  judge  that  to  be  the  hat;  it  looks 
like  the  one  found  there. 

[A  revolver  was  exhibited  to  the  witness.] 

That  is  the  revolver  picked  up;  I  did  not 
see  this  part,  [the  ramrod,  which  was  discon 
nected.] 

[The  hat  and  revolver  were  both  offered  in  evidence.] 
[At  the  request  of  the  Court,  the  guard  was  directed  to 
place  the  hat  on  the  head  of  the  prisoner,  Payne,  to  see  if 
it   fitted    him  or   not,  which   was  done,    Payne  smiling 
pleasantly.    It  was  found  to  fit  him.] 

Recalled  for  the  Prosecution. — May  19. 

[The  accused,  Lewis  Payne,  clad  in  the  coat  and  vest  in 
which  he  was  arrested,  and  the  hat  found  at  Mr.  Sew- 
ard's,  was  directed  to  stand  up  for  recognition.] 

He  looks  more  natural  now  than  he  did 
before.  I  am  not  sure  about  it,  but  I  think 
that  is  the  man  that  came  to  Secretary  Sew 
ard' s  house  on  the  night  of  the  14th  of  April, 
a  little  after  10  o'clock.  The  pistol  that  was 
picked  up  in  the  room  after  he  left  was 
loaded.  I  examined  it. 

MAJOR  AUGUSTUS  H.  SEWARD. 
For  the  Prosecution.— May  26. 

I  am  the  son  of  the  Hon.  William  H.  Sew 
ard,  Secretary  of  State,  and  was/  at  his  home 
in  this  city  on  the  night  of  the  14th  of  April 
last.  I  saw  that  large  man,  with  no  coat  on, 
[pointing  to  the  accused,  Lewis  Payne,]  at 
my  father's  house  that  night. 

I  retired  to  bed  at  half-past  7  on  the  night 
of  the  14th,  with  the  understanding  that  I 
was  to  be  called  about  11  o'clock  to  sit  up  with 
my  father.  I  very  shortly  fell  asleep,  and 
so  remained  until  awakened  by  the  screams 
of  my  sister,  when  I  jumped  out  of  bed  and 
ran  into  my  father's  room  in  my  shirt  and 
drawers.  The  gas  in  the  room  was  turned 
down  rather  low,  and  I  saw  what  appeared  to 
me  to  be  two  men,  one  trying  to  hold  the  other 
at  the  foot  of  my  father's  bed.  I  seized  by 
the  clothes  on  his  breast  the  person  who  was 
held,  supposing  it  was  my  father,  delirious; 
but,  immediately  on  taking  hold  of  him,  I 
knew  from  his  size  and  strength  it  was  not 
my  father.  The  thought  then  struck  me 
that  the  nurse  had  become  delirious  sitting 
up  there,  and  was  striking  about  the  room  at 
random.  Knowing  the  delicate  state  of  my 


father,  I  shoved  the  person  of  whom  I  had 
hold  to  the  door,  with  the  intention  of  getting 
him  out  of  the  room.  While  I  was  pushing 
him,  he  struck  me  five  or  six  times  on  the 
forehead  and  top  of  the  head,  and  once  on 
the  left  hand,  with  what  I  supposed  to  be  a 
bottle  or  decanter  that  he  had  seized  from 
the  table.  During  this  time  he  repeated,  in 
an  intense  but  not  strong  voice,  the  words, 
"I'm  mad!  I'm  mad!"  On  reaching  the 
hall  he  gave  a  sudden  turn,  and  sprang  away 
from  me,  and  disappeared  down  stairs.  When 
near  the  door  of  my  father's  room,  as  I  was 
pushing  him  out,  and  he  came  opposite 
where  the  light  of  the  hall  shone  on  him,  I 
saw  that  he  was  a  very  large  man,  dark, 
straight  hair,  smooth  face,  no  beard,  and  I 
had  a  view  of  the  expression  of  his  counte 
nance.  I  then  went  into  my  room  and  got  my 
pistol.  It  may  possibly  have  taken  me  a 
minute,  as  it  was  in  the  bottom  of  my  carpet 
bag,  to  find  it.  I  then  ran  down  to  the  front 
door,  intending  to  shoot  the  person,  if  he 
attempted  to  return.  While  standing  at  the 
door,  the  servant  boy  came  back  and  said 
the  man  had  ridden  off  on  a  horse,  and  that 
he  had  attacked  the  persons  in  the  house 
with  a  knife.  I  then  realized  for  the  first 
time  that  the  man  was  an  assassin,  who 
had  entered  the  house  for  the  purpose  of 
murdering  my  father. 

I  suppose  it  was  five  minutes  before  I  went 
back  to  my  father's  room.  Quite  a  large 
crowd  came  around  the  door;  I  sent  for  the 
doctors,  and  got  somebody  to  keep  the  crowd 
off'  before  I  went  up  to  his  room.  It  might 
not  have  been  five  minutes,  but  certainly 
three,  before  I  got  back;  I  think  nearer  five. 

I  was  injured  pretty  badly  myself,  I  found, 
when  I  got  up  stairs  again.  After  my  fa 
ther's  wounds  were  dressed,  I  suppose  about 
an  hour,  and  after  my  own  head  had  been 
bandaged,  I  went  in  and  saw  my  father,  and 
found  that  he  had  one  very  large  gash  on  his 
right  cheek,  near  the  neck,  besides  a  cut  on 
his  throat  on  the  right-hand  side,  and  one 
under  •  the  left  ear.  I  did  not  examine  my 
brother's  wounds;  in  fact,  I  went  into  his 
room  but  for  a  short  time  that  night.  I  did 
not  know  how  badly  hurt  he  was.  The  next 
lay  he  was  insensible,  and  so  remained;  and 
it  was  four  or  five  days  before  I  saw  what  his 
wounds  were.  I  found  then  that  he  had  two 
wounds,  one  on  the  scalp,  that  was  open  to 
the  brain,  and  another  one  over  the  ear. 
After  the  pieces  of  fractured  skull  were  taken 
out,  it  left  the  covering  of  the  brain  open. 
It  was  such  a  wound  that  I  should  have  sup 
posed  could  have  been  made  with  a  knife,  but 
he  surgeons  seemed  to  think  it  was  made 
DV  the  hammer  of  a  pistol.  I  heard  that  a 
pistol  was  picked  up  in  the  house,  but  I  did 
not  see  it.  I  saw  the  hat  that  was  found, 
and  think  I  should  recognize  it. 

[A  slouch  felt  hat  was  exhibited  to  the  witness.] 

I  am  quite  certain  that  is  the  hat.  I  did 
not  see  it  the  night  it  was  picked  up,  but  tl; ' 


TESTIMONY   CONCERNING   LEWIS   PAYNE. 


157 


next  day  it  was  taken  out  of  the  bureau- 
drawer,  where  it  had  been  put  the  night  be 
fore,  and  shown  to  me. 

The  surgeons  think  it  was  a  knife  with 
which  I  was  struck,  and  after  the  servant  boy 
told  me  what  the  man  had  been  doing,  I  sup 
posed  so  myself,  though  at  the  time  I  thought 
I  was  being  struck  with  a  bottle  or  a  decanter. 
Not  having  any  idea  that  it  was  a  man  with 
a  knife,  I  did  not  think  any  thing  about  it. 

I  feel  entirely  satisfied  that  the  prisoner  at 
the  bar,  Payne,  is  the  same  man  that  made 
the  attack  on  that  night. 

Cross-examined  by  MR.  DOSTER. 

This  is  not  the  first  time  I  have  seen  the 
prisoner  since  the  attack ;  I  saw  him  on  board 
the  monitor  the  day  after  he  was  taken.  He 
was  brought  up  on  deck  of  the  monitor,  and 
I  took  hold  of  him  the  same  way  I  had  hold 
of  him  when  I  shoved  him  out  of  the  room, 
and  I  looked  at  his  face,  and  he  had  the  same 
appearance,  in  every  way,  that  he  had  the 
few  moments  that  I  saw  him  by  the  light  in 
the  hall ;  his  size,  his  proportions,  smooth 
face,  no  beard,  and  when  he  was  made  to 
repeat  the  words,  "I'm  mad!  I'm  mad!"  I 
recognized  the  same  voice,  varying  only  in 
the  intensity. 

^BURGEON-GENERAL  JOSEPH  K.  BARNES. 
For  the  Prosecution. — May  19. 

I  was  called  on  the  night  of  the  14th  of 
April,  a  few  minutes  before  11  o'clock,  to  go  to 
Mr.  Seward,  the  Secretary  of  State.  On  ar 
riving  at  his  house,  I  found  the  Secretary 
wounded  in  three  places;  Mr.  Frederick  W. 
Sew.ard  insensible  and  very  badly  wounded  in 
the  head;  the  rest  of  the  family  I  did  not 
see,  as  I  was  occupied  with  them.  The 
Secretary  was  wounded  by  a  gash  in  the  right 
cheek,  passing  around  to  the  angle  of  the 
jaw ;  by  a  stab  in  the  right  neck,  and  by  a 
etab  in  the  left  side  of  the  neck. 

Mr.  Frederick  Seward  was  suffering  from  a 
fracture  of  the  cranium  in  two  places;  he 
was  bleeding  very  profusely,  exceedingly  faint, 
almost  pulseless,  and  unable  to  articulate. 
The  wounds  seem  to  have  been  inflicted  by 
some  blunt  instrument — the  butt  of  a  pistol, 
a  loaded  bludgeon,  or  something  of  that 
kind. 

Mr.  Seward,  the  Secretary  of  State,  had 
been  progressing  very  favorably.  He  had  re 
covered  from  the  shock  of  the  accident  of 
ten  days  previously,  and  was  getting  along 
very  well.  His  right  arm  was  broken  close  to 
the  shoulder-joint,  and  his  jaw  was  broken  in 
two  places;  but  the  serious  injury  of  the  first 
accident  was  the  concussion. 

The  wounds  of  Mr.  Seward  were  of  a  very 
dangerous  character,  and  he  is  still  suffering 
from  them. 

I  saw  Major  Seward  in  the  room ;  but  I  did 
not  treat  any  of  the  wounded  persons  profes 
sionally,  except  Mr.  Seward. 


/     DOCTOR  T.  S.  VERDI. 
For  the  Prosecution — May  22. 

I  am  a  physician.  On  Friday  night,  the 
14th  of  April,"  about  half-past  10  o'clock,  per 
haps  a  little  sooner,  I  was  summoned  to 
the  house  of  Mr.  Seward,  the  Secretary  of 
State.  I  saw  the  Hon.  William  H.  Seward, 
Mr.  Frederick  Seward,  Major  Augustus  H. 
Seward,  Mr.  Robinson,  and  Mr.  Hansell,  all 
wounded,  and  their  wounds  bleeding.  I  had 
left  Mr.  Seward  about  9  o'clock  that  evening, 
very  comfortable,  in  his  room,  and  when  I  saw 
him  next  he  was  in  his  bed,  covered  with 
blood,  with  blood  all  around  him,  blood  under 
the  bed,  and  blood  on  the  handles  of  the  doors. 

I  found  Mr.  Emrick  W.  Hansell  on  the 
same  floor  with  Mr.  Seward,  lying  on  a  bed. 
He  said  he  was  wounded.  I  undressed  him, 
and  found  a  stab  over  the  sixth  rib,  from  the 
spine  obliquely  toward  the  right  side.  I  put 
my  fingers  into  the  wound  to  see  whether  it 
had  penetrated  the  lungs.  I  found  that  it 
had  not,  but  I  could  put  my  fingers  probably 
two  and  a  half  inches  or  three  inches  deep. 
Apparently  there  was  no  internal  bleeding. 
The  wound  seemed  to  be  an  inch  wide,  so 
that  the  finger  could  be  put  in  very  easily 
and  moved  all  around.  It  was  bleeding  then, 
very  fresh  to  all  appearances ;  probably  it  was 
not  fifteen  or  twenty  minutes  since  the  stab 
had  occurred. 

Cross-examined  by  MR.  DOSTER. 

Mr.  Frederick  Seward  was  conscious,  but 
had  great  difficulty  in  articulating.  He  wanted 
to  say  something,  but  he  could  not  express 
himself.  He  knew  me  perfectly  well.  He 
had  a  smile  of  recognition  on  his  lips,  and  as 
I  looked  upon  his  wound  on  the  forehead,  he 
was  evidently  impressed  with  the  idea  that 
the  severest  wound  was  in  the  back  of  the 
head,  and  he  commenced  saying,  "  It  is,  it 
is,"  and  would  put  his  finger  to  the  back  of 
his  head.  I  examined  the  wound,  and  found 
that  his  skull  was  broken,  and  I  said  to  him, 
"  You  want  to  know  whether  your  skull  is 
broken  or  not?"  and  he  said,  "Yes."  He 
was  sensible  for  some  time;  but  probably  in 
half  an  hour  he  went  into  a  sleep,  from  which 
he  woke  in  about  fifteen  or  twenty  minutes, 
and  we  attempted  to  put  him  to  bed.  Then 
he  helped  himself  considerably.  We  put 
him  to  bed,  and  he  went  to  sleep,  in  which 
he  remained  for  sixty  hours;  he  then  im 
proved  in  appearance,  and  gradually  became 
more  sensible. 

I  saw  terror  in  the  expression  of  all  Mr. 
Secretary  Seward's  family,  evidently  expecting 
that  his  wounds  were  mortal.  1  examined 
the  wounds,  and  immediately  turned  round  to 
the  family  and  said,  "I  congratulate  you  all 
that  the  wounds  are  not  mortal ;  "  upon  which 
Mr.  Seward  stretched  out  his  hands  and  re 
ceived  his  family,  and  there  was  a  mutual 
congratulation.  This  was  probably  twenty 
minutes  before  Doctor  Barnes  arrived. 


158 


THE  CONSPIRACY   TRIAL. 


Mr.  Seward  had  improved  very  much  from 
his  accident,  and  was  not  in  a  critical  condi 
tion  when  this  attack  was  made.  The  effect 
of  the  wounds  he  received  on  the  night  of  the 
14th  was  principally  from  loss  of  blood,  which 
weakened  him  very  much,  and  made  his  con 
dition  still  more  delicate  and  difficult  to  rally 
from  the  shock.  The  wound  itself  created 
more  inflammation  in  the  cheek  that  had 
been  swollen  by  the  injury  received  before, 
and  rendered  the  union  of  the  bones  more 
difficult.  It  is  not  my  opinion  that  the 
wounds  received  by  Mr.  Seward  tended  to 
aid  his  recovery  from  his  former  accident; 
that  idea  got  afloat  from  the  fact  that  the 
cheek  was  very  much  inflated  and  swollen, 
and  that  by  cutting  into  it,  it  would  probably 
recover  faster;  but  I  never  entertained  and 
never  expressed  such  an  opinion. 

ROBERT  NELSON  (colored.) 
For  the  Prosecution. — May  20. 

I  live  in  Washington ;  I  used  to  live  in 
Virginia. 

[A knife  shown  to  the  witness.] 

That  looks  like  the  knife  I  found  opposite 
Secretary  Seward's  house,  on  the  Saturday 
morning  after  he  was  stabbed.  I  gave  it  to 
an  officer  at  the  door  first,  and  afterward  to 
that  gentleman,  [pointing  to  Surgeon  John 
Wilson,  U.  S.  A.] 

Cross-examined  by  MR.  DOSTER. 

I  do  not  say  that  it  is  the  same  knife,  but 
it  looks  like  the  one  I  found  in  the  middle 
of  the  street,  right  in  front  of  Secretary  Sew 
ard's  house,  between  5  and  6  o'clock  in  the 
morning. 

DR.  JOHN  WILSON. 
For  the  Prosecution. — May  20. 

[The  knife  shown  to  Robert  Nelson  was  exhibited  to  the 
witness.] 

This  is  the  knife  I  received  from  the  col 
ored  boy  who  has  just  left  the  stand.  He 
gave  it  to  me  in  the  library  of  Mr.  Seward's 
house,  about  10  o'clock  on  Saturday  morn 
ing,  the  15th  of  April. 

THOMAS  PRICE. 
For  the  Prosecution. — May  19. 

On  Sunday  afternoon,  the  16th  of  April,  I 
picked  up  a  coat  in  a  piece  of  woods  that 
lies  between  Fort  Bunker  Hill  and  Fort  Sar 
atoga. 

[Two  coats  were  here  submitted  to  the  witness.] 

This  is  the  coat.  It  is  a  white  and  brown 
mixed  cloth.  I  discovered  traces  of  blood  on 
the  sleeve;  that  is  how  I  recognize  it.  I 
found  it  about  three  miles  from  the  city,  in 
the  direction  of  the  Eastern  Branch. 

There  is  a  road  from  one  fort  to  another, 
and  the  coat  was  found  in  the  piece  of  woods 
on  the  eastern  side  of  the  road. 


COLONEL  H.  H.  WELLS. 
For  the  Prosecution. — May  19. 

I  had  the  prisoner,  Payne,  in  my  custody 
on  the  17th  of  April,  the  night  of  his  arrest. 
He  had  on  a  dark-gray  coat,  a  pair  of  black 
pants,  and  something  that  looked  like  a  skull 
cap. 

I  took  off  his  coat,  shirt,  pants,  vest,  and 
all  his  clothing  the  next  day  on  board  the 
monitor.  He  had  on  a  white  linen  shirt  and 
a  woolen  under-shirt,  minus  one  sleeve;  a 
pair  of  boots  with  a  broad  ink-stain  on  them 
on  the  inside. 

FA  box  containing  various  articles  of  clothing  was  ex 
hibited  to  the  witness.] 

These  are  the  articles.  There  is  a  distinct 
mark  on  them  by  which  I  recognize  them. 
I  described  to  the  prisoner  at  the  time  what 
I  supposed  was  his  position  when  he  com 
mitted  the  assault,  and  told  him  I  should 
find  blood  on  the  coat-sleeve  in  the  inside. 
Spots  of  blood  were  found  in  the  position  I 
described. 

[The  witness  exhibited  the  spots  referred  to.] 

I  found  spots,  also,  on  the  white  shirt 
sleeve.  I  called  Payne's  attention  to  this 
at  the  time,  and  said,  "What  do  you  think 
now?"  He  leaned  back  against  the  side  of 
the  boat  and  said  nothing. 

[The  articles  were  offered  in  evidence.] 

I  asked  him  where  he  had  got  his  boots. 
He  said  he  had  bought  them  in  Baltimore, 
and  had  worn  them  three  months.  I  called 
his  attention  to  this  falsehood,  as  it  was  ap 
parent  the  boots  had  only  been  slightly  worn. 
He  made  no  reply  to  that. 

I  took  the  boots  away  with  me,  and  sent 
one  of  them  to  the  Treasury  Department,  to 
ascertain,  if  possible,  what  the  name  was. 

Cross-examined  by  MR.  DOSTER. 

I  did  not  threaten  the  prisoner  at  any  time. 
I  think  it  is  very  possible  I  called  him  a  liar. 
I  saw  stains  of  blood  on  the  coat  that  was 
brought  to  me  from  Fort  Bunker  Hill; *  I 
called  the  prisoner's  attention  to  the  fact, 
and  said,  "How  did  that  blood  come  there?" 
He  replied,  "It  is  not  blood."  I  said,  "Look 
and  see,  and  say,  if  you  can,  that  it  is  not 
blood."  He  looked  at  it  and  said,  "I  do  not 
know  how  it  came  there." 

CHARLES  H.  Rosen. 
For  the  Prosecution. — May  19. 

I  was  present  when  the  prisoner,  Payne, 
was  searched. 

[A  bundle  of  articles,  including  a  pair  of  boots  and  a 
pocket-compass,  was  handed  to  the  witness.] 

All  these  articles  were  taken  from  the  per 
son  of  that  big  man  there,  [pointing  to  the 
accused,  Lewis  Payne.] 

The  pocket-compass  he  himself  handed  to 
Mr.  Samson,  and  Mr.  Samson  handed  it  to 
me.  I  recognize  the  boots;  they  were  pulled 
off  in  my  presence. 


TESTIMONY   CONCERNING   LEWIS   PAYNE. 


159 


SPENCER  M.  CLAKK. 
For  the  Prosecution. — May  19. 
[Submitting  to  the  witness  a  pair  of  boots.] 

I  had  one  of  these  boots  yesterday  for 
examination.  I  then  discovered  the  name, 
which  has  now  mostly  disappeared  under  the 
effect  of  the  acid  I  put  upon  it. 

When  I  received  the  boot,  it  had  on  the 
inside  a  black  mark,  made  apparently  to 
cover  writing.  I  examined  it  witli  a  micro 
scope,  and  found  that  it  was  one  coat  of  ink 
overlaid  on  another.  I  then  attempted  to 
take  off  the  outer  coat  to  see  what  was 
below,  and  partially  succeeded.  The  name 
appeared  to  me  to  be  J.  W.  Booth.  The  J 
and  W  were  distinct;  the  rest  of  the  writing 
was  obscure.  I  can  not  speak  positively  of 
a  thing  that  is  in  itself  obscure,  but  it  left 
very  little  doubt  upon  my  mind  that  the 
name  was  Booth. 

Cross-examined  by  MR.  DOSTER. 

I  have  charge  of  the  engraving  and  print 
ing  in  the  Treasury  Department.  I  took  off 
the  outer  coat  of  ink  by  the  use  of  oxalic 
acid.  Where  the  lower  coat  of  ink  has 
remained  exposed  to  the  air  longer  than  the 
upper  coat,  it  is  possible  to  take  off  the 
upper  and  leave  the  lower  or  inner  coat 
undisturbed.  The  reason  the  latter  part  of 
the  name  in  this  case  was  more  obscure  than 
the  first,  is  because  I  left  the  acid  too  long 
on  the  outer  coat,  and  it  attacked  the  lower 
one.  The  upper  coat  is  separated  from  the 
lower  by  washing  with  water  as  fast  as  it  is 
dissolved.  The  acid  is  put  on  under  a  mag 
nifier,  and  the  moment  the  outer  coat  disap 
pears,  and  the  under  one  begins  to  show,  I 
destroy  the  acid.  An  examination  at  the 
moment  the  outer  coat  dissolves  and  is 
washed  away,  shows  the  lower  coat  of  writ 
ing.  I  supposed  the  lower  coat  had  been 
exposed  to  the  air  longer  than  the  outer,  and 
made  an  effort  to  test  it,  which  proved  that 
it  was  so. 

The  boot  was  given  me  by  Mr.  Field, 
Second  Assistant  Secretary  of  the  Treasury, 
who  told  me  it  had  belonged  to  Payne.  I 
expected  to  find  the  name  of  Payne,  but  I 
thought  I  plainly  discovered  the  "  th  "  at  the 
end,  when  the  name  Booth  came  to  my 
mind.  That  was  before  I  had  clearly  determ 
ined  upon  the  B.  I  should  hesitate  to 
swear  positively  to  any  thing  so  obscure  as 
an  obliterated  signature,  but  I  entertain  very 
little  doubt  that  the  name  is  J.  W.  Booth. 
There  is  no  process,  that  I  am  aware  of,  to 
restore  the  name.  The  writing  can  not  be 
said  to  be  erased;  it  has  been  acted  upon  by 
the  acid  which  destroys  the  color  of  the  ink. 

EDWARD  JORDAN. 
For  the  Prosecution. — May  19. 

I  am  a  solicitor  of  the  Treasury.  I  was 
requested  to  look  at  the  ink-marks  on  that 


boot  after  it  had  been  subjected  to  chemical 
preparations  by  Mr.  Clark.  By  examining 
the  writing  through  a  glass,  I  came  to  the 
conclusion  that  the  name  written  there  was 
"J.  W.  Booth." 

Cross-examined  by  MR.  DOSTER. 

I  did  not  know  to  whom  the  boot  belonged, 
or  where  it  came  from;  and  I  had  no  suspi 
cion  why  it  was  in  Mr.  Clark's  possession.  I 
was  accidentally  passing  the  room  of  the 
Assistant  Secretary  of  the  Treasury,  when 
Mr.  Clark  said,  "  I  have  something  curious 
to  show  you,  I  wish  you  would  look  at  it," 
or  words'to  that  effect.  The  first  letter,  "J," 
was  very  distinct;  the  W  and  B  were  less  so. 
I  thought  the  outline  of  the  writing  was  quite 
visible  and  determinable,  but  to  say  that  it 
was  distinct  would  not  be  true.  I  was  asked 
what  I  thought  the  name  was.  My  reply 
was,  I  thought  it  was  the  name  of  a  very 
distinguished  individual. 

By  the  JUDGE  ADVOCATE. 

I  arrived  at  the  conclusion  that  it  was  the 
name  of  J.  W.  Booth  before  I  had  received 
any  intimation  as  to  what  it  was  supposed 
to  *be. 

STEPHEN  MARSH. 

For  the  Prosecution. — May  19. 

That  boot  was  shown  to  me  by  Mr.  Field, 
Assistant  Secretary  of  the  Treasury,  yester 
day.  On  examining  it,  I  thought  I  could 
make  out  certain  letters  on  it.  At  first  1 

could    make    out    "  J.    W.  B -h,"  then  I 

thought  I  could  trace  a  t  next  to  the  h  ;  thus: 

J.  W.  B th,     I   could  not  be  positive  as 

to  the  intervening  letters;  I  examined  them 
only  with  the  naked  eye,  but  in  regard  to  the 
letters  I  have  mentioned,  I  have  no  doubt  at 
all.  In  the  intervening  space,  between  the 
B  and  th,  there  was  room  for  two  or  three 
letters. 

Cross-examined  by  MR.  DOSTER. 

The  boot  was  handed  to  me  by  Mr.  Field 
in  his  room.  I  was  told  to  examine  it,  and 
see  if  I  could  make  out  what  name  appeared 
to  be  written  there.  I  did  so,  and  the  result 
I  have  stated. 

LIEUTENANT  JOHN  F.  TOFFEY. 
For  the  Prosecution. — May  17. 

On  the  night  of  the  14th  or  the  morning 
of  the  15th  of  April  last,  it  might  have  been 
a  little  after  1,  as  I  was  going  to  the  Lin 
coln  Hospital,  where  I  am  on  duty,  1  saw  a 
dark-bay  horse,  with  saddle  and  bridle  on, 
standing  at  Lincoln  Branch  Barracks,  about 
three-quarters  of  a  mile  east  of  the  Capitol. 
The  sweat  was  pouring  off  him,  and  had 
made  a  regular  puddle  on  the  ground.  A 
sentinel  at  the  hospital  had  stopped  the  horse. 
I  put  a  guard  round  it  and  kept  it  there 
until  the  cavalry  picket  was  thrown  out, 


160 


THE    CONSPIRACY   TRIAL. 


when  I  reported  the  fact  at  the  office  of  the 
picket,  and  was  requested  to  take  the  horse 
down  to  the  head-quarters  of  the  picket,  at 
the  Old  Capitol  Prison.  I  there  reported 
having  the  horse  to  Captain  Lord,  and  he 
requested  me  to  take  it  to  General  Augur's 
head-quarters.  Captain  Lansing  of  the  Thir 
teenth  New  York  Cavalry  and  myself  took 
it  there,  where  the  saddle  was  taken  off,  and 
the  horse  taken  charge  of. 

[A  saddle  was  here  shown  to  the  witaess.] 

I  should  think  that  was  the  saddle;  I 
know  the  stirrups.  When  I  got  to  General 
Augur's  head-quarters,  I  found  that  the  horse 
was  blind  of  one  eye.  Whether  he  had 
fallen  or  not  I  do  not  know,  but  as  I  rode 
him  down  I  noticed  that  he  was  a  little 
lame. 

From  the  Lincoln  Hospital  to  the  Navy 
Yard  Bridge  is  fully  a  mile. 

[Tho  saddle  was  put  in  evidence.] 


Cross-examined  by  Mr.  DOSTER. 

The  horse  was  on  a  sort  of  by-road  that 
leads  to  Camp  Barry;  it  turns  north  from  the 
Branch  Barracks  toward  Camp  Barry  to 
the  Bladensburg  road.  I  found  him  by  the 
dispensary  of  the  hospital.  He  had  come 
running  there,  but  from  what  direction  I  do 
not  know. 

Recalled. — May  18 

I  have  been  to  General  Augur's  stables  on 
Seventeenth  and  I  Streets,  and  there  recog 
nized  the  horse  I  found. 
See  also  testimony  of 

Louis  J.  Weichmann pages  113,  118 

Miss  Anna  E.  Surratt page  130 


Miss  Honora  Fitzpatrick. 

John  T.  Holahan 

Mrs.  Eliza  Holahan 

Major  H.  W.  Smith 

Capt.  W.  M.  Wermerskirch 

R.  C.  Morgan 


132 
139 
132 
121 
123 
122 


DEFENSE  OF  LEWIS  PAYNE. 


Miss  MARGARET  BRANSON. 

For  the  Defense. — June  2. 

By  MR.  DOSTER. 

I  live  at  No.  16  North  Eutaw  Street, 
Baltimore.  I  first  met  the  prisoner,  Payne, 
at  Gettysburg,  immediately  after  the  battle 
there.  I  was  a  volunteer  nurse,  and  he  was 
in  my  ward.  He  was  very  kind  to  the  sick 
and  wounded.  I  do  not  know  that  he  was  a 
nurse,  nor  do  I  know  that  he  was  a  soldier. 
As  nearly  as  I  remember,  he  wore  blue 
pants,  no  coat,  and  a  dark  slouch  hat.  He 
went  there  by  the  name  of  Powell,  and  by 
the  name  of  Doctor.  The  hospital  contained 
both  Confederate  and  Union  soldiers.  I  was 
there  about  six  weeks,  and  left  the  first 
week  in  September.  I  do  not  remember 
whether  Powell  was  there  the  whole  of  that 
time. 

I  saw  him  again  some  time  that  fall  or 
winter,  at  my  mother's  house.  He  was 
there  but  a  very  short  time;  only  a  few 
hours,  and  I  had  very  little  conversation 
witli  him. 

Q.  Did  he  say  to  you  where  he  was  going  ? 

Assistant  Judge  Advocate  BINGHAM.  The 
witness  need  not  state;  what  he  said  to  her 
is  altogether  incompetent  evidence. 

Mr.  DOSTER.  May  it  please  the  Court,  I 
intend  to  set  up  the  plea  of  insanity,  as  I 
have  already  stated,  in  the  case  of  the  pris 
oner,  Payne.  It  is  very  true  that,  under  all 
other  pleas,  declarations  of  this  kind  are  not 
considered  competent  evidence  for  the  defense, 


but  the  declaration  of  a  person  suspected  of 
insanity  is  an  act,  and  therefore  admissible. 

Assistant  Judge  Advocate  BINGHAM.  That 
is  all  very  true;  but  the  proper  way  to  get 
at  it  is  to  lay  some  foundation  for  introduc 
ing  the  declarations  in  support  of  the  allega 
tion  that  the  party  was  insane.  In  this  case 
no  foundation  has  been  laid. 

Mr.  DOSTER.  I  claim  that  the  whole  con 
duct  of  the  alleged  murderer,  from  beginning 
to  end,  is  the  work  of  an  insane  man,  and 
that  any  further  declarations  I  may  prove, 
are  merely  in  support  of  that  theory  and  of 
that  foundation  as  laid  by  the  prosecution. 

Assistant  Judge  Advocate  BINGHAM.  Ac 
cording  to  that,  the  more  atrocious  a  man's 
conduct  is,  the  more  he  is  to  be  permitted  to 
make  a  case  for  himself  by  all  his  wild  dec 
larations,  of.  every  sort  and  to  everybody,  at 
every  time  and  at  every  place.  If  he  only 
manages  to  get  a  knife  large  enough  to  sever 
the  head  of  an  ox  as  well  as  the  head  of 
a  man,  rushes  past  all  the  friends  of  a  sick 
man  into  his  chamber,  stabs  him  first  on  one 
side  of  the  throat  and  then  on  the  other,  and 
slashes  him  across  the  face,  breaks  the  skull 
of  his  son,  who  tries  to  rescue  him,  yelps, 
"I  am  mad!  I  am  mad!"  and  rushes  to  the 
door  and  mounts  a  horse  which  he  was  care 
ful  to  have  tied  there,  he  may  thereupon 
prove  all  his  declarations  in  his  own  defense, 
to  show  that  he  was  not  there  at  all. 

Mr.  DOSTER.  It  is  claimed  here  that  there 
is  no  foundation  laid  for  the  plea  of  insanity. 
In  the  first  place,  all  the  circumstances  con- 


DEFENSE  OF  LEWIS  PAYNE. 


161 


nected  with  the  assassination  show  the  work 
of  insane  men.  The  entrance  into  the  house 
of  Mr.  Seward  was  by  a  stratagem  which  is 
peculiarly  indicative  of  insane  men.  Then 
the  conduct  of  Payne,  after  he  entered  the 
house,  without  the  slightest  particle  of  dis 
guise,  speaking  to  the  negro  for  five  minutes 
— a  person  that  he  must  know  would  be  able 
to  recognize  him  again  therafter;  the  ferocity 
of  the  crime,  which  is  not  indicative  of  hu 
man  nature  in  its  sane  state;  his  leaving  all 
the  traces  which  men  usually  close  up  be 
hind  him.  Instead  of  taking  away  his  pistol 
and  his  knife  and  his  hat,  he  walks  leisurely 
out  of  the  room,  having  plenty  of  time  to 
take  these  away,  and  abandons  them;  he 
takes  his  knife  and  deliberately  throws  it 
down  in  front  of  Mr.  Seward's  door,  as 
though  anxious  to  be  detected;  and  then, 
instead  of  riding  off  quickly,  as  a  sane  man 
would  under  the  circumstances,  he  moves  off 
so  slowly  that  the  negro  tells  you  he  followed 
him  for  a  whole  square  on  a  walk;  and  after 
ward,  instead  of  escaping  either  to  the  north, 
on  the  side  where  there  were  no  pickets  at  the 
time,  (for  it  was  shown  he  had  a  sound 
horse,)  or  instead  of  escaping  over  the  river, 
as  he  had  ample  opportunity  of  doing — be 
cause  if  he  could  not  get  across  the  Ana- 
costa  Bridge,  he  might  have  swam  the  river 
at  any  point — he  wanders  off  into  the  woods, 
rides  around  like  a  maniac,  abandons  his 
horse,  takes  to  the  woods,  and  finally  comes 
back  to  the  very  house  which,  if  he  had 
any  sense,  he  knew  must  be  exactly  the 
house  where  he  would  be  arrested — where  there 
were  guards  at  the  time,  and  where  he  must 
have  known,  if  he  had  been  sane,  that  he 
would  immediately  walk  into  the  arms  of 
the  military  authorities.  He  goes  to  this 
house  in  a  crazy  disguise;  because  who  in 
the  world  ever  heard  of  a  man  disguising 
himself  by  using  a  piece  of  his  drawers  as  a 
11  at,  supposing  that  a  sane  man  would  not 
discover  the  disguise.  Finally,  there  is  the 
conduct  of  this  person  since  he  has  been 
here  on  trial — the  extraordinary  stolidity  of 
this  man,  as  opposed  to  the  rest  of  the  prison 
ers;  instead  of  showing  the  slightest  feeling, 
he  has  displayed  an  indifference  throughout 
this  trial.  You  yourselves  noticed  that  at 
the  time  of  that  solemn  scene,  when  the  ne 
gro  identified  him  he  stood  here  and  laughed 
at  the  moment  when  his  life  was  trembling 
in  the  balance.  I  ask  you,  is  that  the  con 
duct  of  a  sane  man?  There  are,  besides, 
some  physical  reasons  which  go  hand  in 
hand  with  insanity,  and  corroborate  it,  of  a 
character  more  delicate,  and  which  I  can 
not  mention  now,  but  which  I  am  prepared 
to  prove  before  the  Court  at  any  time.  I  say 
that  the  most  probable  case  of  insanity  that 
can  be  made  out  has  baen  made  out  by  the 
prosecution,  in  the  conduct  of  this  prisoner 
before  the  assassination,  during  the  assassi 
nation,  at  the  time  of  his  arrest,  and  during 
the  trial. 

11 


Mr.  CLAMFITT.  May  it  please  the  Court,  I 
do  not  rise  for  the  purpose  of  denying  to 
the  counsel  for  the  accused,  Payne,  the  right 
to  set  up  the  plea  of  insanity,  or  any  other 
plea  that  he  thinks  proper;  but  I  do  rise  for 
the  purpose  of  indignantly  proclaiming  that 
he  has  no  right  to  endeavor  to  bring  before 
this  Court  the  house  of  Mrs.  Surratt  as  a 
rendezvous  to  which  Payne  would  naturally 
resort.  There  is  no  evidence  which  has 
shcwvn  that  he  would  naturally  go  to  her 
house  for  the  purpose  of  hiding  or  for  the 
purpose  of  screening  himself  from  justice. 

The  Commission  sustained  the  objection 
of  the  Judge  Advocate. 

WITNESS.  I  do  not  know  where  he  went 
to  from  my  mother's.  In  January  of  this  year, 
he  came  again  to  our  house.  He  was  dressed 
then  in  citizen's  dress  of  black,  and  repre 
sented  himself  to  be  a  refugee  from  Farquier 
County,  Va.,  and  gave  his  name  as  Payne. 
He  took  a  room  at  my  mother's  house,  staid 
there  six  weeks  and  a  few  days,  and  left  in  the 
beginning  of  March.  He  never,  to  my  knowl 
edge,  saw  any  company  while  there.  I  never 
saw  J.  Wilkes  Booth,  and  do  not  know  that 
he  ever  called  upon  Payne. 

MARGARET  KAIGHX. 

For  the  Defense. — June  2. 
By  MR.  DOSTER. 

I  am  servant  at  Mrs.  Branson's.  I  have 
seen  the  prisoner,  Payne,  at  Mrs.  Branson's 
boarding-house;  he  came  there  last  January 
or  February,  and  remained  till  the  middle  of 
March.  I  remember  he  asked  a  negro  servant 
to  clean  up  his  room,  and  she  gave  him  some 
impudence,  and  said  she  would  not  do  it.  She 
called  him  some  names,  and  then  he  struck 
her;  he  threw  her  on  the  ground  and  stamped 
on  her  body,  struck  her  on  the  forehead,  and 
said  he  would  kill  her;  and  the  girl  after 
ward  went  to  have  him  arrested. 

DR.  CHARLES  H.  NICHOLS. 

For  the  Defense. — June  2. 

By  MR.  DOSTER. 

Q.  Have  I  at  any  time  given  you  any  indi 
cation  of  the  answers  I  expected  you  to  give 
before  this  Court? 

A.  You  have  not, 

Q.  State  what  your  official  position  is,  and 
your  profession. 

A.  I  am  a  doctor  of  medicine,  and  super 
intendent  of  the  Government  Hospital  for  the 
Insane,  which  position  I  have  occupied  for 
thirteen  years. 

Q.  What  class  of  persons  do  you  treat  in 
your  hospital  ? 

A.  Insane  persons  exclusively.  The  bulk 
of  the  patients  I  treat  are  composed  of  sailors 
and  soldiers. 

Q.  Please  define  moral  insanity. 

A.  When  the  moral  or  affective   faculties 


162 


THE    CONSPIRACY   TRIAL. 


eeem  to  be  exclusively  affected  by  disease  of  the 
brain,  T  call  that  a  case  of  moral  insanity. 

Q.  What  are  some  of  the  principal  leading 
causes  that  produce  moral  insanity? 

A.  My  impression  is  that  insanity  is  oft- 
ener  caused  by  physical  disease  than  moral 
causes,  and  that  the  fact  that  insanity  takes 
the  form  of  moral  insanity  is  apt  to  depend 
on  the  character  of  the  individual  before  he 
becomes  deranged. 

Q.  Is  active  service  in  the  field,  among 
soldiers,  at  any  time,  a  cause  of  moral  in 
sanity? 

A.  It  is;  but  not  a  frequent  cause.  I  have 
known  cases  of  moral  insanity  occur  among 
soldiers. 

Q.  Has  or  has  not  insanity  increased  very 
much  in  the  country,  and  in  your  hospital, 
during  the  present  war? 

A.  It  has. 

Q.  Has  it  not  increased  much  more,  pro 
portionately,  than  the  increase  in  the  army? 

A.   It  has. 

Q.  How  is  the  increase  accounted  for? 

A.  By  the  diseases,  hardships,  and  fatigues 
of  a  soldier's  life,  I  think,  to  which  the  men 
were  not  accustomed  until  they  entered  the 
service. 

Q.  Are  young  men  who  enlist  more  ex 
posed  to  insanity  than  men  who  enlist  in 
middle  life? 

A.  I  am  not  sure  that  they  are.  My  im 
pression  is,  that  young  men  accommodate 
themselves  to  a  change  in  their  manner  of 
life  rather  more  readily  than  men  of  middle 
age. 

Q.  What  are  some  of  the  leading  symp 
toms  of  moral  insanity? 

A.  The  cases  are  as  diverse  as  the  indi 
viduals  affected.  If  a  man,  for  example,  be 
lieves  an  act  to  be  right  which  he  did  not 
believe  to  be  right  when  in  health,  and  which 
people  generally  do  not  believe  to  be  right, 
I  regard  that  as  a  symptom  of  moral  in- 
eanity. 

Q.  Is  depression  of  spirits  at  any  time  con 
sidered  a  symptom  of  insanity.? 

A.  It  is. 

Q.  Is  great  taciturnity  considered  a  symp 
tom? 

A.  It  is  a  frequent  symptom  of  insanity, 
but  I  can  conceive  that  great  taciturnity 
might  exist  without  insanity. 

Q.  Is  a  disposition  to  commit  suicide  and 
on  indifference  to  life  considered  a  symptom? 

A.  It  is. 

Q.  Is  great  cunning  and  subtlety  in  making 
plans  concomitant  of  insanity? 

A.  The  insane  frequently  exhibit  extraor 
dinary  cunning  in  their  plans  to  effect  an 
object 

Q.  Is  it  or  is  it  not  possible  for  a  madman  to 
confederate  with  other  madmen  or  sane  men 
in  plans  ? 

A.  I  would  say  that  it  is  not  impossible, 
but  it  is  infrequent  for  madmen  to  confeder 
ate  in  effecting  their  plans. 


Q.  Do  madmen  never  confederate  in  plans  ? 

A.  Very  seldom. 

Q.  Is  or  is  not  a  morbid  propensity  to  de 
stroy,  proof  of  insanity  ? 

A.  Not  a  proof,  but  it  is  a  very  common 
attendant  upon  insanity. 

Q.  Is  it  not  a  symptom  of  insanity  if  one, 
apparently  sane,  and  without  provocation  or 
cause,  commits  a  crime? 

A.  I  should  regard  it  as  giving  rise  to  a  sus 
picion  of  insan  ity,  but  not  of  itsel  f  a  proof  of  it. 

Q.  Is  not  all  conduct  that  differs  from  the 
usual  modes  of  the  world  proof  of  insanity? 

A.  I  will  answer  that  by  saying  that  no 
single  condition  is  a  proof  of  insanity  in  every 
instance,  but  that  an  entire  departure  from 
the  usual  conduct  of  man  would  be  consid 
ered  as  affording  strong  ground  to  suspect 
the  existence  of  insanity. 

Q.  Are  madmen  not  remarkable  for  great 
cruelty  ? 

A.  My  impression  is  that  madmen  exhibit 
about  the  same  disposition  in  that  respect 
that  men  generally  do. 

Q.  Do  or  do  not  madmen,  in  committing 
crimes,  seem  to  act  without  pity? 

A.  Those  who  commit  criminal  acts  fre 
quently  do. 

Q.  If  one  should  try  to  murder  a  sick  man 
in  his  bed,  without  ever  having  seen  him 
before,  would  it  not  be  presumptive  proof  of 
insanity? 

A.  Jt  would  give  rise,  in  my  mind,  to  the 
suspicion  that  a  man  was  insane.  I  should 
not  regard  it  as  proof. 

Q.  If  the  same  person  should  besides  try 
to  murder  four  other  persons  in  the  house 
without  having  seen  them  before,  would  it 
not  strengthen  that  suspicion  of  insanity? 

A.   I  think  it  would. 

Q.  If  the  same  person  should  make  no  at 
tempt  to  disguise  himself,  but  should  converse 
for  five  minutes  with  a  negro  servant,  walk 
away  leisurely,  leave  his  hat  and  pistol  be 
hind,  throw  away  his  knife  before  the  door, 
and  ride  away  so  slowly  that  he  could  be  fol 
lowed  for  a  square  by  a  man  on  foot,  would 
not  such  conduct  further  corroborate  the  sus 
picion  of  insanity? 

A.  I  think  it  would.  It  is  a  peculiarity  of 
the  insane,  when  they  commit  criminal  acts, 
that  they  make  little  or  no  attempt  to  conceal 
them  ;  but  that  is  not  always  the  case. 

Q.  If  the  same  person  should  cry  out,  while 
stabbing  one  of  the  attendants,  "  I  am  mad,  I 
am  mad,"  would  it  not  be  further  ground  for 
suspicion  that  he  was  insane? 

A.  Such  an  exclamation  would  give  rise,  in 
my  mind,  to  an  impression  that  the  man  was 
feigning  insanity.  Insane  men  rarely  make 
such  an  exclamation,  or  a  similar  one,  and 
they  rarely  excuse  themselves  for  a  criminal 
act  on  the  ground  that  they  are  insane. 

Q.  Do  not  madmen  sometimes  unconscious 
ly  state  that  they  are  mad? 

A.  They  do  sometimes,  but  it  is  not  fre 
quent  that  they  do. 


DEFENSE  OF  LEWIS  PAYNE. 


163 


Q.  Do  you  not  remember  cases  in  your  ex 
perience  where  madmen  have  told  you  they 
were  mad  ? 

A.  They  frequently  do  it  in  this  way:  An 
individual  knows  that  he  is  regarded  as  in 
sane,  and  if  taken  to  task  for  any  improper 
act,  a  shrewd  man  will  excuse  himself  on  the 
ground  that  he  is  an  insane  man,  and  there 
fore  not  responsible. 

Q.  If  the  same  person  that  I  have  men 
tioned  should,  although  in  the  possession  of 
a  sound  horse,  make  no  effort  to  escape,  but 
•should  abandon  his  horse,  wander  off  into  the 
woods,  and  come  back  to  a  hcus?  surrounded 
with  soldiers,  and  where  he  nvght  expect  to 
be  arrested,  would  that  not  be  additional 
ground  for  the  suspicion  tbat  he  was  insane? 

A.  I  should  regard  every  act  of  a  man  who 
had  committed  a  crir><e,  indicating  that  he 
was  indifferent  to  the  consequences,  as  a 
ground  for  suspecting  that  he  was  insane. 

Q.  If  the  same  person  should  return  to  this 
house  I  have  spoken  of,  with  a  piece  of  his 
drawers  for  his  hat,  at  a  time  when  he  saw 
the  soldiers  in  its  possession,  would  not  that 
be  additional  proof  of  insanity  ? 

A.  I  can  hardly  see  what  bearing  that 
would  have  upon  the  question  of  insanity. 

Q.  I  understood  you  to  say  before  that 
roadmen  seldom  disguise  themselves.  The 
disguise  in  question  consisted  of  a  piece  of 
drawers  being  used  for  a  hat.  I  ask  whether 
that  disguise  may  properly  be  presumed  to  be 
the  disguise  of  a  sane  man  or  an  insane  man  ? 

A.  It  would  depend  upon  circumstances. 
It  is  a  common  peculiarity  of  insane  men, 
that  they  dress  themselves  in  a  fantastic 
manner;  for  example,  make  head-dresses  out 
of  pieces  of  old  garments.  They  do  it,  how 
ever,  apparently  from  a  childish  fancy  for 
something  that  is  fantastic  and  attracts  at 
tention;  and  I  do  not  recollect  a  case  of  an 
insane  person  dressing  himself  in  a  garment 
or  garments  of  that  kind  for  the  sake  of  dis 
guising  himself. 

Q.  If  this  same  person,  after  his  arrest, 
should  express  a  strong  desire  to  be  hanged, 
and  express  great  indifference  of  life,  would 
that  be  additional  ground  for  suspicion  of 
insanity? 

A.  I  think  it  would. 

Q.  Would  it  be  further  ground  for  suspi 
cion  if  he  seemed  totally  indifferent  to  the 
conduct  of  his  trial,  laughed  when  he  was 
identified,  and  betrayed  a  stolidity  of  manner 
different  from  his  associates? 

A.   I  think  it  would. 

Q.  Please  state  to  the  Court  what  physical 
sickness  generally  accompanies  insanity,  if 
any  there  is. 

A.  I  believe  that  disease,  either  functional 
or  organic,  of  the  brain  always  accompanies 
insanity.  No  other  physical  disease  neces 
sarily,  or  perhaps  usually,  accompanies  it. 

Q.  Is  long-continued  constipation  one  of 
the  physical  conditions  that  accompany  in 
sanity? 


A.  Long-continued  constipation  frequently 
precedes  insanity.  Constipation  is  not  very 
frequent  among  the  actual  insane. 

Q.  If  this  same  person  that  I  have  de 
scribed  to  you,  had  been  suffering  from  con 
stipation  for  four  weeks,  would  that  be  con 
sidered  additional  ground  for  believing  in  his 
insanity  ? 

A.  ]  think  it  would.  I  think  some  weight 
might  be  given  to  that  circumstance. 

Q.  If  the  same  person,  during  his  trial 
and  during  his  confinement,  never  spoke 
until  spoken  to,  at  a  time  when  all  his  com 
panions  were  peevish  and  clamorous;  if  he 
never  expressed  a  want  when  all  the  rest 
expressed  many  ;  remained  in  the  same  spirits 
when  the  rest  were  depressed ;  retained  the 
same  expression  of  indifference  when  the 
rest  were  nervous  and  anxious,  and  continued 
immovable,  except  a  certain  wildness  in  his 
eyes,  would  it  not  be  considered  additional 
ground  for  believing  in  his  insanity? 

A.   I  think  it  would. 

Q.  If  this  same  person,  after  committing 
the  crime,  should,  on  being  questioned  as  to 
the  cause,  say  he  remembered  nothing  dis 
tinctly,  but  only  a  struggle  with  persons 
whom  he  had  no  desire  whatever  to  kill, 
would  not  that  be  additional  ground  for  sus 
picion  of  insanity  ? 

A.  I  think  it  would. 

Q.  What  are  the  qualities  of  mind  and 
person  needed  by  a  keeper  to  secure  control 
over  a  madman  ? 

A.  Self-control. 

Q.  Are  not  madmen  easily  managed  by 
persons  of  strong  will  and  resolute  character? 

A.  Yes,  sir;  they  are. 

Q.  Are  there  not  instances  on  record  of 
madmen  who  toward  others  were  wild,  while 
toward  their  keepers,  or  certain  persons 
whom  they  held  to  be  superiors,  they  were 
docile  and  obedient,  in  the  manner  of  doga 
toward  their  masters  ? 

A.  I  think  the  servile  obedience  which  a 
dog  exhibits  to  his  master  is  rarely  exhib 
ited  by  the  insane.  It  is  true,  that  the  insane 
are  comparatively  mild  and  obedient  to  cer 
tain  persons,  when  they  are  more  or  less 
turbulent  and  violent  toward  other  persons. 

Q.  Would  it  not  be  possible  for  such  a 
keeper,  exercising  supreme  control  over  a 
madman,  to  direct  him  to  the  commission  of 
a  crime,  and  secure  that  commission  ? 

A.  I  should  say  that  would  be  very  diffi 
cult,  unless  it  was  done  in  the  course  of  a 
few  minutes  after  the  plan  was  laid  and  the 
direction  giveiv  I  should  say,  generally,  it 
would  be  very  difficult. 

Q.  Is  not  the  influence  of  some  persons 
over  madmen  so  great  that  their  will  seems 
to  take  the  place  of  the  will  of  the  mad 
man  ? 

A.  There  is  a  great  difference  in  the 
control  that  different  individuals  have  over 
insane  persons,  but  1  think  it  an  error  that, 
that  control  reaches  the  extent  you  have 


164 


THE    CONSPIRACY   TRIAL. 


described,  or  the  extent,  I  may  add,  that  is 
popularly  supposed. 

Q.  Do  you  or  not  recognize  a  distinction 
between  mania  and  delusion? 

A.  A  certain  distinction,  inasmuch  as  de 
lusion  may  accompany  any  form  and  every 
form  of  insanity,  and  mania  is  the  name 
given  to  a  particular  form,  which  may  or 
may  not  be  accompanied  by  delusion. 

Q.  Are  not  instances  of  insane  delusion 
more  frequent  during  civil  war  than  any 
other  kind  of  insanity? 

A.  My  impression  is,  that  cases  in  which 
delusions  are  entertained  are  not  as  frequent. 
Insanity  is  of  a  more  general  character — so 
far  as  my  experience  goes,  has  been  during 
the  war,  among  soldiers — than  it  usually  is. 

Q.  Does  or  does  not  constant  dwelling  on 
the  same  subject  lead  to  an  insane  delusion  ? 

A.    It  frequently  does,  I  think. 

Q.  If  a  body  of  men,  for  instance,  who 
owned  slaves,  were  constantly  hearing  speeches 


given  just  a  categorical  one  to  all  the  ques 
tions  that  have  been  asked  me,  I  believe;  I 
am,  personally,  and  as  an  expert,  very  much 
opposed  to  giving  an  opinion  in  respect  to 
hypothetical  cases,  for  the  simple  and  best 
of  reasons,  as  I  conceive  that  1  have  none, 
and  I  could  give  no  definite  opinion  upon 
the  facts  implied  in  the  questions  submitted 
to  me.  Every  case  of  insanity  is  a  case  of 
itself,  and  has  to  be  studied  with  all  the  light 
that  can  be  thrown  upon  it,  and  it  is  impos 
sible  for  me  to  give  an  opinion,  upon  a  hypo 
thetical  case. 

DR.  JAMES  C.  HALL. 
For  the  Defense. — June  13. 

This  morning  I  spent  three-quarters  of  an 
hour  in  an  examination  of  the  prisoner. 
Lewis  Payne.  I  first  examined  him  with 
regard  to  his  physical  condition.  His  eye 
appeared  to  be  perfectly  natural,  except  that 


and  sermons  vindicating  the  divine  right  of  it  appeared  to  have  very  little  intellectual 
slavery,  burned  men  at  the  stake  for  attempt-  expression;  but  it  was  capable  of  showing  a 
ing  to  abolish  slavery,  and  finally  took  up  i  great  deal  of  passion  and  feeling.  I  discov- 


arms  to  defend  slavery,  when  no  man  was 
really  attacking  it,  would  not  that  be  evi 
dence  that  some  of  these  men  were  actually 
deluded  ? 

A.  I  think  it  would  ;  but  it  does  not  follow 
that  the  delusion  is  what  I  technically  de 
nominate  an  insane  delusion,  arising  from 
disease  of  the  brain,  and  for  which  a  man  is 
not  responsible. 

Q.  If  one  of  those  same  men  who  owned 
slaves,  and  believed  in  the  divine  origin  of 
slavery,  and  had  fought  in  its  defense,  and 
believed  that  he  had  also  fought  in  defense 
of  his  home  and  friends,  should  attempt,  on 
his  own  motion,  to  kill  the  leaders  of  the 
people,  who  he  believed  were  killing  his 
friends,  would  not  that  conduct  be  esteemed 


a  fanatical  delusion  ? 

Assistant  Judge  Advocate  BURNETT. 


Un- 


ered  a  remarkable  want  of  symmetry  in  the 
two  sides  of  his  head.  The  left  side  is  much 
more  developed  than  the  right.  His  pulse  I 
counted  twice  carefully;  I  found  it  to  be  a 
hundred  and  eight,  which  is  about  thirty 
strokes  above  a  natural  healthy  pulse.  In 
other  respects  his  health  seemed  to  be  good, 
with  the  exception  of  another  habit,  which, 
I  believe,  the  Court  is  informed  of — namely, 
constipation.  His  general  muscular  develop 
ment  is  perfectly  healthy. 

I  questioned  him  first  to  test  his  memory.  I 
found  that  it  acted  very  slowly.  He  appeared 
to  answer  my  questions  willingly,  but  his  mind 
appeared  to  be  very  inert,  and  it  took  some 
time  before  he  would  give  me  an  answer  to 
a  very  simple  question,  though  he  did  not 
seem  to  be  at  all  reluctant  in  giving  me  the 
information  I  was  seeking  for.  His  intel 
lect  appears  to  be  of  a  very  low  order ;  and 
yet  I  could  not  discover  that  there  was  any 
sign  .of  insanity.  His  mind  is  naturally  dull 
and  feeble,  and,  I  presume,  has  not  been  culti 
vated  by  education. 

I  asked  him  certain  questions  which  I 
thought  would  draw  out  his  moral  nature 
and  feelings,  and  the  conclusion  to  which  I 
came  was,  that  he  would  perform  acts,  and 
think  himself  justified  in  so  doing,  which  a 
man  of  better  moral  nature  and  of  a  better 
mind  would  condemn. 

Q.  Did  you  or  not  state  the  case  to  him  of 
a  person  committing  the  crime  with  which  he 
is  charged,  and  ask  his  opinion  in  reference 
to  the  moral  right  to  commit  it? 

A.  I  did.  I  mentioned  it  as  a  supposed 
case,  and  he  said  he  thought  a  person  in  per 
forming  such  an  act  as  I  described  would  be 
justified.  "  I  wish  you  would  give  me  some 

were  to  call  these  witnesses  from  Florida  first,  j  reason,"  I  said,  "why  you  think  he  would 
WITNESS.  If  I  may  be  allowed,  I  would  | be  justified;  why  you  think  an  act  which 
like  to  give  an  explanatory  answer.  1  have  I  think  wrong,  and  which  everybody  else 


less  Mr.  Doster  can  give  us  some  idea  when 
this  species  of  examination  will  be  brought 
to  a  close,  we  must  here  interpose  objection. 
It  certainly  has  nothing  whatever  to  do  with 
the  case.  He  is  imagining  facts  that  do  not 
exist,  and  he  is  examining  upon  a  basis  that 
he  has  not  laid,  and  it  is  certainly  irrelevant 
and  foreign  to  the  issue.  Will  Mr.  Doster  state 
if  he  is  nearly  through  with  his  examination? 
Mr.  DOSTER.  The  course  of  examination 
that  I  propose  is  not  a  great  deal  longer.  I 
mentioned  the  other  day  that  it  was  impos 
sible  for  me  to  secure  the  attendance  of  wit 
nesses  from  Florida.  Regularly,  I  ought  not 
to  have  called  Dr.  Nichols  before  these  wit 
nesses  had  been  here  and  had  been  exam 
ined.  I  have  been  unwilling  to  detain  Dr. 
Nichols  here,  and  have  endeavored  to  go  over 
the  whole  ground  with  him,  so  that  I  need 
not  call  him  twice,  as  I  would  have  to  do  if  I 


DEFENSE  OF  LEWIS  PAYNE. 


165 


thinks  wrong,  could  be  justified."  His  an 
swer  amounted  to  this,  that  he  thought  in 
war  a  person  was  entitled  to  take  life.  That 
was  the  reason  he  assigned  why  he  thought 
such  an  act  could  be  justified. 

I  should  say  that,  from  the  whole  exam 
ination,  there  was  reasonable  ground  for 
suspicion  of  insanity.  It  seems  to  me  that 
no  man  could,  if  he  were  perfectly  sane,  ex 
hibit  the  utter  insensibility  that  he  does  and 
did  in  my  presence.  I  do  not  think  there  was 
any  attempt  at  deception.  He  answered  the 
questions,  so  far  as  his  mind  would  permit 
him,  plainly  and  clearly,  without  any  attempt 
at  deceiving  me  or  misleading  me.  I  can  not 
give  a  positive  opinion  that  he  is  laboring 
under  either  moral  or  mental  insanity.  To 
decide  on  a  case  of  this  kind,  one  ought  to  see 
the  person  at  various  times  and  under  various 
circumstances.  I  never  saw  this  man  before. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  can  not  discover  any  positive  signs  of 
mental  insanity,  but  of  a  very  feeble,  inert 
mind;  a  deficiency  of  mind  rather  than  a 
derangement  of  it;  a  very  low  order  of  intel 
lect.  His  memory  appears  to  be  very  slow 
in  acting. 

Q.  Did  he  or  not  seem  to  have  a  distinct 
recollection  of  his  crime,  and  also  of  the  mo 
tives  and  course  of  reasoning — 

Mr.  DOSTER.  I  object  to  that  question. 

WITNESS.  I  did  not  refer  to  it  as  the  crime 
committed  by  himself.  I  asked  him  what 
he  would  think  of  a  man  who  had  committed 
a  crime  such  as  he  was  charged  with,  and 
he  said  he  thought  he  would  be  right  in 
doing  it.  I  carefully  avoided  applying  the 
act  or  crime  to  himself,  personally;  I  merely 
epoke  of  it  as  a  supposititious  case.  I  did  not 
think  it  would  be  right  for  me  to  receive  any 
confession  from  him,  and  I  rather  avoided 
extorting  it.  I  by  no  means  regard  atrocious 
Crime  as  per  se  evidence  of  insanity. 

Q.  Do  you  regard  insensibility  under  crime 
or  indifference  to  the  results  of  crime  as  indi 
cating  insanity? 

A.  Where  a  man  commits  crime  habitually 
and  without  any  adequate  motive  or  provo 
cation,  I  should  be  disposed  then  to  suspect 
insanity.  If  there  is  an  absence  of  motive 
and  an  absence  of  provocation,  and  if  it  is 
done  habitually,  these  are  the  conditions.  A 
single  act  I  should  be  very  reluctant  to  form 
an  opinion  upon. 

Q.  If  a  man,  engaged  in  arms  as  a  rebel 
against  the  Government  of  his  country,  is 
found  assassinating  its  Chief  Magistrate  and 
the  members  of  its  Cabinet,  would  you  or  not 
regard  these  circumstances  as  indicating  suf 
ficiently  the  presence  of  motive  to  save  him 
from  the  imputation  of  insanity  ? 

A.  Yes,  he  might  have  a  motive.  I  can 
readily  conceive  that  a  man  might  think  he 
had  a  sufficient  motive  and  a  sufficient  justi 
fication  for  it. 

Q.  Do  I  or  not  understand  you  to  say,  Doc 


tor,  that,  from  the  whole  examination  you 
have  made,  you  regard  the  prisoner,  Payne,  as 
sufficiently  sane  to  be  a  responsible  being  for 
his  acts? 

A.  I  have  not  altogether  made  up  my  mind 
on  that.  I  do  not  think  that  the  single  exam- 
ation  which  I  have  made  vould  suffice  to 
decide  the  question.  I  think  there  is  enough 
to  allow  us  a  suspicion  that  he  may  not  be  a 
perfectly  sane  and  responsible  man.  I  can 
give  no  positive  opinion  on  that  point.  His 
intellect  is  very  feeble  and  inert. 

Q.  The  extent,  then,  to  which  you  go,  is 
that  there  is  ground  for  suspicions  ?  You  do 
not  express  any  such  opinion  ? 

A.  I  do  not  express  a  positive  opinion  that 
he  is  either  morally  or  mentally  insane,  but 
that  there  is  sufficient  ground,  both  from  his 
physical  condition  and  his  mental  develop 
ment,  for  &  suspicion  of  insanity. 

Q.  Do  you  rest  that  suspicion  largely  on  his 
course  of  reasoning,  and  the  conclusion  he 
drew  from  the  case  which  you  supposed? 

A.  Yes,  sir;  I  should  think  that  was  the 
result  either  of  insanity  or  very  badly  culti 
vated  mind,  and  very  bad  morals. 

Q.  Might  it  not  be  wholly  the  result  of  very 
bad  morals? 

A.  It  might  entirely.  I  attach  some  im 
portance  to  his  physical  condition.  It  is 
generally  known  that  persons  who  are  insane, 
habitually,  with  few  exceptions,  have  an  un 
usual  frequency  of  pulse.  His  pulse  is  thirty 
odd  strokes  above  the  normal  standard. 

Q.  He  was  aware  of  the  purpose  for  which 
you  had  your  interview  with  him,  was  he  not? 

A.  I  introduced  myself  by  telling  him 
that  I  was  a  physician,  and  that  the  Court 
had  directed  me  to  examine  into  his  condi 
tion,  and  I  referred  to  some  matters  connected 
with  his  health. 

Q.  Did  he  seem  to  be  under  any  excite 
ment? 

A.  Not  the  least  He  was  perfectly  calm, 
and  at  times  smiled.  He  did  not  seem  to  be 
playing  a  part  at  all.  He  appeared  to  answer 
the  questions  honestly  and  truthfully,  so  far 
as  I  could  judge;  but  his  memory  is  very 
slow,  and  it  is  very  difficult  to  get  from  him 
an  answer  to  a  very  simple  question.  I  asked 
him  in  regard  to  his  birth  and  his  residence. 
He  could  not  remember  the  maiden  name  of 
his  mother.  He  said  her  first  name  was  Caro 
line,  but  he  could  not  remember  her  majden 
name. 

But  I  have  known  sane  persons  who  forgot 
their  own  names.  The  celebrated  John  Law, 
of  this  city,  would  go  to  the  post-office  and  be 
unable  to  call  for  a  letter  in  his  own  name. 

JOHN  B.  HUBBARD. 

For  the  Defense. — June  3. 

By  MR.  DOSTER. 

I  am  at  times  in  charge  of  the  prisoner, 
Lewis  Payne,  and  have  at  times  had  conver 
sation  with  him. 


166 


THE   CONSPIRACY   TRIAL. 


Q.  Please  state  the  substance  of  that  con 
versation. 

Assistant  Judge  Advocate  BINGHAM.  That 
I  object  to. 

The  JUDGE  ADVOCATE.  Is  this  conversa 
tion  offered  as  a  confession,  or  as  evidence 
of  insanity? 

Mr.  DOSTER.  As  evidence  of  insanity.  I 
believe  it  is  a  settled  principle  of  law  that  all 
declarations  are  admissible  under  the  plea  of 
insanity. 

Assistant  Judge  Advocate  BINGHAM.  There 
is  no  such  principle  of  the  law,  that  all  decla 
rations  are  admissible  on  the  part  of  the  ac 
cused  for  any  purpose.  I  object  to  the  intro 
duction  of  the  declarations  of  the  prisoner, 
made  on  his  own  motion. 

The  JUDGE  ADVOCATE.  If  the  Court  please, 
as  a  confession,  of  course,  this  declaration  is 
not  at  all  competent,  but  if  it  is  relied  upon 
as  indicating  an  insane  condition  of  mind,  I 
think  it  would  be  better  for  the  Court  to  con 
sider  it.  We  shall  be  careful,  however,  to 
exclude  from  its  consideration  these  state 
ments  so  far  as  the  question  of  the  guilt  or 
innocence  of  the  particular  crime  is  con 
cerned,  and  to  admit  them  only  so  far  as 
they  may  aid  in  solving  the  question  of  in 
sanity  raised  by  the  counsel. 

WITNESS.  I  was  taking  him  out  of  the 
court-room,  about  the  third  or  fourth  day  of 
the  trial,  and  he  said  he  wished  they  would 
make  haste  and  hang  him;  that  he  was  tired 
of  life,  and  would  rather  be  hung  than  come 
back  here  in  the  court-room.  And  about  a 
week  ago  he  spoke  to  me  about  his  constipa 
tion;  he  said  he  had  been  constipated  ever 
since  he  had  been  here.  I  have  no  personal 
knowledge  of  the  truth  of  this. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  communicated  this  statement  to  Colo 
nel  Dodd  or  Colonel  McCall,  and  I  believe  to 
General  Hartranft,  and  to  no  one  else. 

JOHN  E.  ROBERTS. 

For  the  Defense. — June  3. 

By  MR.  DOSTER. 

I  am  on  duty  around  the  prison,  but  have 
no  special  charge  of  the  prisoner,  Lewis 
Payne,  more  than  the  others.  I  have  had 
a  little  conversation  with  him.  After  the 
coat  and  hat  were  taken  off  him,  on  the  day 
that  Major  Seward  was  examined,  I  had  to 
put  his  irons  back  on  him,  and  he  told  me 
then  that  they  were  tracking  him  pretty  close, 
and  that  he  wanted  to  die. 

COLONEL  W.  H.  H.  McCALL. 

For  the  Defense. — June  3. 

By  MR.  DOSTER. 

1  have  charge  of  the  prisoner,  Payne,  in 
connection  with  Colonel  Frederick  and  Colo 
nel  Dodd;  we  each  have  eight  hours' duty 
out  of  the  twenty-four.  My  duty  makes  rne 


cognizant  of  the  conduct  of  the  prisoner  in 
his  cell,  and  to  the  best  of  my  knowledge  he 
has  been  constipated  from  the  29th  of  April 
until  last  evening;  that  was  his  first  passage. 
I  never  had  any  conversation  with  him  on 
the  subject  of  his  death. 

MRS.  LUCY  ANN  GRANT. 

For  the  Defense. — June  12. 

By  MR.  DOSTER. 

Mr.  DOSTER.  I  am  about  to  call  two  wit 
nesses,  and  to  prevent  any  objections  being 
made,  I  will  state  that  the  reason  for  calling 
them  is  to  show  that  the  prisoner,  Payne, 
three  months  before  the  alleged  attempted 
assassination  of  Mr.  Seward,  saved  the  lives 
of  two  Union  soldiers.  It  is  the  very  essence 
of  insanity  that  one  violates  the  "even  tenor" 
of  his  previous  life;  and,  therefore,  if  I  can 
show  that  three  months  before  the  alleged 
attempted  assassination  this  person  exercised 
a  degree  of  honor  and  benevolence,  which  he 
afterward  violated  and  turned  into  ferocity 
and  malignity,  it  will  give  a  high  degree  of 
probability  to  the  plea,  and  his  subsequent 
conduct  can  only  be  explained  by  his  being 
under  the  control  of  fury  and  madness. 

WITNESS.  I  live  on  the  Waterloo  Pike, 
Warrenton,  Virginia.  I  recollect  having  seen 
one  of  the  prisoners  before;  that  one  with 
the  gray  shirt,  [pointing  to  the  accused, 
Lewis  Payne.]  I  saw  him  some  time  about 
Christmas  in  the  road  in  front  of  our  house; 
he  was  in  charge  of  three  Union  prisoners. 
It  was  at  the  time  of  General  Torbett's  raid; 
after  he  had  passed  through  Warrenton,  on 
his  return  to  Washington.  Some  men — rebel 
soldiers,  I  suppose,  from  their  uniform — were 
going  to  kill  these  prisoners,  and  I  remember 
seeing  this  man  try  to  prevent  it.  He  told 
them  that  he  could  not  defend  all,  but  if 
they  killed  or  captured  the  one  he  had  in 
charge,  they  would  do  it  at  the  peril  of  their 
lives.  They  left  the  road  then,  and  I  do  not 
know  what  became  of  them  afterward,  but  I 
know  one  of  the  prisoners  was  killed,  for  a 
Confederate  soldier  wanted  to  bring  him  into 
my  house,  and  1  was  scared  nearly  to  death. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  never  saw  the  man  before  or  since;  but 
he  is  the  same  man,  I  am  certain.  I  should 
know  him  anywhere.  He  was  dressed  in  a 
dark  gray  uniform,  and  some  of  the  men 
called  him  "  Lieutenant."  I  understood  from 
a  citizen  to  whom  I  was  speaking  about  his 
trying  to  save  those  Union  prisoners  that  his 
name  was  Powell. 

JOHN  GRANT. 

For  the  Defense. — June  12. 
By  MR.  DOSTER. 

I  am  the  husband  of  Mrs.  Grant,  who 
has  just  left  the  stand.  I  was  about  three 


TESTIMONY   IN   REBUTTAL. 


167 


hundred  yards  from  my  home,  when  the 
affray  began  in  front  of  my  house,  on  the 
first  of  last  January.  I  rushed  home  as 
quickly  as  I  could,  when  the  pistol  firing 


commenced;  and  I  saw  that  that  man, 
[Payne,]  whose  name  I  understood  was 
Powell,  saved  the  lives  of  two  Union  sol 
diers. 


TESTIMONY  IN  REBUTTAL. 


SURGEON-GENERAL  J.  K.  BARNES. 
For  the  Prosecution, — June  14. 

In  association  with  Dr.  Hall  and  Surgeon 
Norris,  1  have  made  an  examination  this 
morning  of  the  prisoner,  Payne,  and  find  no 
evidence  of  insanity — none  whatever. 

The  evidences  of  sanity  which  struck  me  as 
present  in  his  case  are  his  narrative  of  himself, 
of  the  places  he  has  been  at,  of  his  occupation, 
the  coherence  of  his  story,  and,  the  most  im 
portant  evidence,  his  reiteration  of  his  state 
ments  of  yesterday  and  of  his  first  examination 
this  morning.  That  is  considered  a  very  se 
vere  test.  It  is  called  the  Shakspearian  test, 
and  is  one  of  the  severest. 

Cross-examined  by  MR.  POSTER. 

I  should  consider  the  Shakspearian  test 
a  test  for  both  moral  and  mental  sanity. 

I  have  not  of  late  years  had  a  large  expe 
rience  in  cases  of  insanity ;  but  some  years 
ago  I  was  in  charge  of  the  insane  wards  of  a 
large  hospital. 

I  was  present  when  the  prisoner  answered 
Dr.  Hall's  question  as  to  his  moral  responsi 
bility  for  this  crime,  and  heard  him  say  that, 
under  certain  circumstances,  he  considered 
such  a  crime  justifiable. 

DR.  JAMES  C.  HALL. 
Recalled  for  the  Prosecution. — June  14. 

This  morning,  in  connection  with  Dr  Nor 
ris  and  Dr.  Porter,  we  had  an  examination  of 
the  prisoner,  Lewis  Payne,  and  since  the 
recess  of  the  Commission,  Dr.  Barnes,  the 
Surgeon-General,  joined  us,  and  we  examined 
him  again. 

I  asked  him  very  nearly  the  same  questions 
I  proposed  to  him  yesterday,  for  the  purpose 
of  seeing  whether  he  would  give  me  answers 
consistent  with  those  which  I  then  received, 
and  I  found  that  they  were  very  accurately 
the  same,  and  he  answered  to-day  with  rather 
more  promptness  than  yesterday. 

I  think  I  am  now  prepared  to  say  that 
there  is  no  evidence  of  mental  insanity. 
Payne's  mind  is  weak  and  uncultivated,  but 
I  can  not  discover  any  sufficient  evidence  of 
mental  insanity. 


Cross-examined  by  MR.  DOSTER. 

Q.  What  are  you  prepared  to  state  as  to  hia 
moral  insanity  ? 

A.  We  asked  him  the  question  to-day 
whether  he  believed  in  a  God.  He  said  he 
did,  and  that  he  believed  he  was  a  just  God. 
He  also  acknowledged  to  me  that  at  one  time 
he  had  been  a  member  of  the  Baptist  Church. 
I  asked  him  the  question,  which  I  believe  I 
repeated  to  the  Court  yesterday,  whether  he 
thought  that  private  assassination,  practiced 
upon  an  enemy  in  public  war,  was  justifiable. 
After  some  little  hesitation,  he  said  that  he 
believed  it  was. 

Q.  Is  it  or  not  esteemed  an  evidence  of  a 
fanatical  delusion  that  a  person  believes  to 
be  right  what  everybody  else  believes  to  be 
wrong  ? 

A.  In  some  instances  it  would;  but  I  can 
readily  conceive  that  there  are  persons  whose 
minds  and  morals  are  such  that  they  would 
believe  a  crime  similar  to  that  which  he 
has  committed  to  be  justifiable  and  proper, 
even  a  duty. 

DR.  BASIL  NORRIS. 
For  the  Prosecution. — June  14. 

1  am  a  surgeon  in  the  regular  army. 
This  morning,  in  association  with  the  Sur 
geon-General  of  the  army  and  Dr.  Hall,  I 
made  an  examination  of  the  prisoner,  Payne, 
and  I  arrived  at  the  conclusion  that  he  is  not 
insane. 

His  look  is  natural,  and  his  speech  per 
fectly  natural,  and  his  manner  natural ;  that 
of  a  man  sane.  There  is  nothing  in  hia 
appearance,  or  speech,  or  manner  that  indi 
cates  to  me  that  he  is  a  man  of  unsound  mind. 
In  my  opinion,  there  is  nothing  to  indicate  the 
presence  either  of  moral  or  what  may  be  called 
mental  insanity.  We  asked  him  a  number 
of  questions.  His  reasoning  faculties  ap 
peared  to  be  good,  and  his  judgment  good, 
to  which  I  attach  great  importance. 

We  could  not  learn  of  any  thing  in  his 
past  life,  so  far  as  we  have  been  able  to 
gather  his  history,  that  would  indicate  in 
sanity.  We  learned  but  very  little  of  hia 
past  history;  but  so  far  as  his  life  has  been 
disclosed  since  he  has  been  here,  his  con- 


168 


THE    CONSPIRACY   TRIAL. 


duct  and  conversations,  nothing  that  he  has 
done,  has  indicated  to  me  that  he  was  an  in 
sane  man. 

Cross-examined  by  MR.  DOSTER. 

I  am  not  familiar  with  cases  of  insanity, 
but  I  have  seen  some  cases,  and  have  visited 
institutions  for  the  insane.  I  would  form 
my  opinion  of  a  man  very  much  as  any  other 
person. 

It  is  not  usual  for  madness  to  escape  the 
scrutiny  of  physicians  on  a  single  interview, 
or  on  two  interviews.  I  think  there  is  some 
thing  always  in  the  appearance  of  a  man,  in 
his  manner  or  in  his  speech,  that  would 
arouse  a  suspicion  of  a  physician,  or  indeed 
of  any  intelligent  person,  even  on  one  inter 
view. 

I  have  heard  of  cases  of  men  who  have 
been  examined  for  months  at  a  time  before 
their  madness  was  discovered,  but  none  have 
come  to  my  knowledge. 

I  do  not  think  the  conduct  of  the  prisoner 
in  my  presence  was  the  conduct  of  a  madman 
during  a  lucid  interval.  It  will  be  found  upon 
scrutiny  that  the  conduct  of  a  madman  in  a 
lucid  interval  differs  from  the  ordinary  con 
duct  of  men.  Upon  careful  examination, 
there  will  be  some  indication  always,  in  my 
opinion,  that  to  several  medical  men,  or  sev 
eral  intelligent  men,  will  be  observable.  I 
would  regard  it  as  a  very  exceptional  case  if 
this  man  should  be  insane.  I  believe  it  is 
possible  that  this  man  might  be  a  mono 
maniac  on  a  subject  not  broached  to  him  this 
morning;  but  yet  a  monomaniac  will  almost 
invariably — I  believe  myself  he  would  invari 
ably — in  a  conversation  with  strange  persons, 
strike  upon  that  subject  that  he  had  the  delu 
sion  on — that  subject  upon  which  he  was 
insane.  It  is  my  opinion  that  a  monoma 
niac,  in  an  examination  of  half  an  hour 
even,  by  strange  persons  especially,  would 
strike  upon  the  subject  on  which  he  was 
deluded;  that  he  would  speak  upon  the  sub 
ject  on  which  he  was  a  monomaniac.  I 


believe  there  are  cases  on  record  of  mono 
maniacs  who  have  gone  whole  weeks  with 
out  referring  to  the  subject  on  which  the}' 
were  insane;  but  I  have  never  seen  fcuch 
cases. 

ASSISTANT  SURGEON  GEORGE  L.  PORTER. 
For  the  Prosecution. — June  14. 

I  was  associated  with  Surgeon-General 
Barnes  and  other  medical  gentlemen  in  an 
examination  of  the  prisoner,  Lewis  Payne, 
and  our  conclusion  was  that  he  was  a  sane 
man,  and  responsible  for  his  actions. 

He  has  been  under  my  eye  ever  since  he 
has  been  confined  here.  I  have  made  in 
spections  twice  each  day  since  the  30th  of 
April;  and  his  conduct  and  conversation 
during  that  period  have  been  such  as  to 
impress  me  that  he  is  a  sane  and  responsible 
man.  I  have  not  observed  any  indication 
of  insanity,  i 

Ci  oss-examined  by  MR.  DOSTER. 

I  believe  that  the  law  does  not  recog 
nize  moral  as  distinct  from  mental  insanity. 
Moral  insanity  is  where  the  mind  of  a  person 
is  perverted  on  moral  subjects;  mental  insan 
ity  has  regard  to  the  intellectual  more  than 
the  moral  faculties.  The  symptoms  of  moral 
insanity  are  common  to  all  cases  of  insanity. 

Insane  persons  have  generally  some  phys 
ical  symptoms  which  I  find  wanting  in  this 
case.  I  have  examined  this  man  twice  each 
day,  and  I  found  that  his  pulse,  as  a  general 
rule,  was  lower  than  the  pulse  of  the  others. 
Recently,  I  have  examined  by  the  watch,  and 
find  that  his  has  not  been  so  frequent  as 
that  of  the  other  prisoners.  Last  night  it 
was  eighty;  this  morning  it  was  eighty-three 
or  eighty-four.  Another  symptom  of  insan 
ity  is  want  of  sleep,  restlessness.  In  this 
case  it  has  been  particularly  noticeable  that 
while  the  other  prisoners  were  awake  when 
I  made  my  inspections  in  the  evening,  I 
almost  always  found  this  man  asleep. 


TESTIMONY  CONCERNING  SAMUEL  A.  MUDD. 


COLONEL  H.  H.  WELLS. 
For  the  Prosecution. — May  16. 

During  the  week  subsequent  to  the  assas 
sination,  I  had  three  interviews  with  Dr. 
Samuel  A.  Mudd,  in  each  of  which  he  made 
statements  to  me;  the  first  and  third  verbal, 
the  second  in  writing.  He  said  that,  about 
4  o'clock  on  Saturday  morning,  the  15th  of 
April,  he  was  aroused  by  a  loud  knock  at 
his  door.  Going  to  the  window,  he  saw  in 


his  front  yard  a  person  holding  two  horses, 
on  one  of  which  a  second  person  was  sitting. 
The  one  who  held  the  horses  he  described 
as  a  young  man,  very  talkative  and  fluent 
of  speech.  The  person  on  horseback  had 
broken  his  leg,  and  desired  medical  attend 
ance.  He  (Mudd)  assisted  in  bringing  the 
person  on  horseback  into  his  house,  and  lay 
ing  him  upon  the  sofa  in  the  parlor.  After 
he  had  lain  on  the  sofa  for  some  time,  he 
was  carried  up  stairs,  and  put  on  a  bed  in 


TESTIMONY   CONCERNING    SAMUEL    A.    MUDD. 


169 


the  front  room.  He  then  examined  his  leg, 
and  found  that  the  front  bone  was  broken, 
nearly  at  right  angles,  about  two  inches 
above  the  instep.  It  seemed,  in  his  judg 
ment,  as  slight  a  breaking  as  it  could  possi 
bly  be.  The  patient  complained  also  of  a 
pain  in  his  back.  He  examined  and  found 
no  apparent  cause  for  the  pain,  unless  it 
might  have  been  in  consequence  of  his  fall 
ing  from  his  horse,  as  he  said  he  had  done. 
Dr.  Mudd  stated  that  he  dressed  the  limb  as 
well  as  he  was  able  to  do  it  with  the  limited 
facilities  he  had,  and  called  a  young  man,  a 
white  servant,  I  think,  to  make  a  crutch  for 
him.  At  breakfast,  the  younger  of  the  two 
persons  partook  with  them.  After  breakfast, 
Dr.  Mudd  observed  the  condition  of  his  pa 
tient.  He  seemed  much  debilitated,  and  pale 
to  such  an  extent  that  he  was  unable  to  tell 
what  his  complexion  might  have  been,  light 
or  dark.  After  breakfast  the  young  man 
made  some  remark  about  procuring  a  con 
veyance  to  take  his  friend  away.  In  the 
mean  time  he  (Mudd)  had  been  about,  giving 
directions  to  his  farm  servants.  I  think  he 
said  the  two  persons  remained  until  some 
time  after  dinner.  He  started  out  with  the 
young  man  to  see  if  a  carriage  could  be  pro 
cured  at  his  father's,  but  meeting  his  younger 
brother,  he  ascertained  from  him  that  the 
carriage  could  not  be  procured,  and  then 
rode  on  to  join  the  young  man  who  had  gone 
ahead,  and  together  they  rode  into  the  pines 
a  mile  and  a  half  beyond  the  elder  Mudd's 
house.  The  young  man  remarked  that  he 
would  not  go  further  to  get  a  carriage,  but 
would  go  back  to  the  house  and  see  if  he 
could  get  his  friend  oft'  in  some  way  or  other. 
Dr.  Mudd  then  went,  as  he  said,  to  the  town, 
or  near  the  town,  to  see  some  friends  or 
patients,  and  then  returned  to  his  house. 
As  he  came  back  to  his  house,  he  saw  the 
younger  man  of  the  two  pass  to  the  left  of 
the  house  toward  the  barn. 

He  said  he  did  not  recognize  the  wounded 
man.  I  exhibited  to  him  a  photograph  of 
Booth,  but  he  said  he  could  not  recognize 
him  from  that  photograph. 

He  said  he  had  been  introduced  to  Booth 
at  Church,  some  time  in  November  last,  as 
wanting  to  buy  farming  lands,  and  that  they 
had  some  little  conversation  on  the  subject 
of  lands.  In  this  conversation  Booth  asked 
if  there  were  any  desirable  horses  that  could 
be  bought  in  the  neighborhood  cheaply;  and 
Mudd  mentioned  a  neighbor  of  his  who  had 
some  horses  that  were  good  drivers ;  that 
Booth  remained  with  him  that  night,  and 
next  morning  purchased  one  of  those  horses. 

In  answer  to  a  question,  he  admitted  that 
he  could  now  recognize  the  person  he  treated 
as  the  same  person  he  was  introduced  to — 
Booth.  He  had  never  seen  Booth  from  the 
time  he  was  introduced  to  him  in  Church 
until  that  Saturday  morning.  Herold  he 
had  not  before  seen. 

He  thought  there  was  something  strange 


about  these  two  persons,  from  the  young 
man  coming  down  shortly  after  breakfast 
and  asking  for  a  razor,  saying  his  friend 
wished  to  shave  himself;  and  when  he  was 
up  stairs  shortly  afterward,  he  saw  that  the 
wounded  man  had  shaved  off  his  moustache. 
The  wounded  man,  he  thought,  had  a  long, 
heavy  beard;  whether  natural  or  artificial 
he  did  not  know.  He  kept  a  shawl  about 
his  neck,  seemingly  for  the  purpose  of  con 
cealing  the  lower  part  of  his  face.  He  said 
he  first  heard  of  the  murder  either  on  Sun 
day  morning  or  late  on  Saturday  evening. 

He  said  that  Herold — for  by  that  name  we 
spoke  of  him  after  the  first  explanation — 
asked  him  the  direct  road  to  Dr.  Wilmer's, 
saying  he  was  acquainted  with  the  Doctor. 
Dr.  Mudd  described  the  main  traveled  road, 
and  was  then  asked  if  there  was  not  a  nearer 
way.  He  replied  that  there  was  a  road 
across  the  swamp,  and  described  it. 

Dr.  Mudd  pointed  out  to  me  the  track  they 
took,  and  I  went  with  him  a  long  way  into 
the  marsh,  and  across  it  on  to  the  hill, 
where,  instead  of  keeping  straight  on,  they 
turned  square  to  the  left,  across  a  piece  of 
plowed  ground,  and  there  all  trace  of  them 
was  lost. 

This  embraces  what  Dr.  Mudd  told  me  at 
the  several  interviews. 

Cross-examined  by  MR.  EWING. 

Dr.  Mudd's  manner  was  so  very  extraor 
dinary,  that  I  scarcely  know  how  to  describe 
it.  He  did  not  seem  unwilling  to  answer  a 
direct  question ;  he  seemed  embarrassed,  and 
at  the  third  interview  alarmed,  and  I  found 
that,  unless  I  asked  direct  questions,  import 
ant  facts  were  omitted.  I  first  saw  him  on 
Friday,  the  21st,  and  my  last  interview  was 
on  Sunday,  I  think.  We  had,  perhaps,  a 
dozen  interviews  in  all.  It  was  at  the  last 
interview  that  I  told  him  he  seemed  to  be 
concealing  the  facts  of  the  case,  which  would 
be  considered  the  strongest  evidence  of  his 
guilt,  and  might  endanger  his  safety. 

On  Sunday  Dr.  Mudd  took  us  along  the 
road  that  the  two  men  had  taken  from  his 
house.  They  took  the  direction  pointed  out 
by  the  Doctor  until  they  came  to  the  hill. 
The  marsh  there  is  full  of  holes  and  bad 
places.  I  thought  I  discovered,  from  their 
tracks,  that  in  going  to  the  right  to  avoid  a 
bad  place  they  had  changed  their  direction, 
and  got  lost. 

My  impression  is  that  Dr.  Mudd  said  he 
had  first  heard  of  the  assassination  on  the  Sat 
urday  evening;  that  somebody  had  brought 
the  news  from  Bryantown.  The  question 
was  asked  Dr.  Mudd  by  some  person  whether 
any  thing  had  been  paid  to  him  for  setting 
the  wounded  man's  leg,  and  I  think  he  said 
they  had  paid  him  $25. 

He  said  that  he  had  told  Dr.  George  Mudd, 
I  think  he  said  on  Sunday,  that  there  had 
been  two  suspicious  men  at  his  house.  The 
town  was  full  of  soldiers  and  people,  coming 


170 


THE  CONSPIRACY   TRIAL. 


and  going  all  the  time,  and  the  place  was  in 
a  state  of  general  excitement. 

By  the  JUDGE  ADVOCATE. 

I  understood  Dr.  Mudd  to  mean  that  he 
recognized  the  wounded  man,  while  at  his 
house,  to  be  the  Booth  to  whom  he  had  been 
introduced  in  November.  His  expression 
was  that  he  did  not  recognize  him  at  first, 
but,  on  reflection,  he  remembered  him  as  the 
person  to  whom  he  had  been  introduced. 

He  said  that,  as  he  came  back  in  the  after 
noon,  he  saw  the  wounded  man  going  away 
from  the  house,  hobbling  through  the  mud. 
Herold  had  been  riding  the  bay  horse,  and 
was  going  off  on  it.  The  roan  horse,  he  sup 
posed,  was  in  the  stable.  He  did  not  say 
that  he  did  not  see  them  leave;  but  from  the 
position  he  described  them  as  being  in,  he 
could  not  see  them  the  moment  after  they  left 
the  stable. 

By  MR.  EWING. 

As  near  as  I  can  recollect,  the  words  used 
by  Dr.  Mudd,  in  reference  to  recognizing 
Booth's  photograph,  were  that  he  should  not 
have  recollected  the  man  from  the  photo 
graph,  and  that  he  did  not  know  him  or  re 
member  him  when  he  first  saw  him;  but  that 
on  reflection  he  remembered  that  he  was  the 
man  who  was  introduced  to  him  in  November 
last;  but  he  did  not  say  whether  this  reflec 
tion,  from  which  he  recognized  the  wounded 
man  as  the  one  to  whom  he  had  been  intro 
duced,  occurred  before  or  after  the  man  left; 
but  the  impression  made  on  my  mind  was 
that  it  was  before  the  man  left.  He  gave  as 
the  reason  for  not  remembering  him  at  first 
that  the  man  was  very  much  worn  and  de 
bilitated,  and  that  he  seemed  to  make  an  effort 
to  keep  the  lower  part  of  his  face  disguised; 
but  of  course  the  open  light  of  day,  the  shav 
ing  of  the  face,  and  the  fact  that  he  some 
times  slept,  gave  better  opportunities  for 
observation.  I  do  not  think  he  said  any 
thing  to  indicate  that  the  wounded  man  at 
any  time  entirely  threw  off  his  attempt  to 
disguise;  but  when  he  came  to  reflect,  he 
remembered  that  it  was  the  man  to  whom  he 
had  been  introduced;  he  did  not,  however, 
I  believe,  say  that  that  reflection  or  memory 
came  to  him  at  any  particular  moment. 

MARY  SIMMS  (colored.) 
For  the  Prosecution. — May  25. 

I  know  that  prisoner  yonder,  Dr.  Samuel 
Mudd,  [pointing  to  the  accused.  Samuel  A. 
Mudd.]  I  was  his  slave,  and  lived  with  him 
four  years;  I  left  him  about  a  month  before 
this  Christmas  gone.  I  heard  him  talk 
about  President  Lincoln.  He  said  that  he 
stole  in  there  at  night,  dressed  in  woman's 
clothes;  that  they  lay  in  watch  for  him,  and 
if  he  had  come  in  right  they  would  have 
killed  him.  He  said  nothing  about  shooting 
him;  he  would  have  killed  him,  he  said,  if 


he  had  come  in  right,  but  he  could  not;  he 
was  dressed  in  woman's  clothes. 

A  man  named  John  Surratt  and  a  man 
named  Walter  Bowie,  visited  Dr.  Mudd's  last 
summer.  Mr.  Surratt  was  a  young-looking 
man,  slim  made,  not  very  tall,  nor  very  short, 
and  his  hair  was  light.  He  came  very  often. 
Dr.  Samuel  Mudd  and  his  wife  both  called 
him  Mr.  Surratt;  they  all  called  him  that. 
He  was  there  almost  every  Saturday  night 
to  Monday  night;  and  when  he  would  go  to 
Virginia  and  come  back  he  would  stop  there. 
He  did  not  sleep  at  Dr.  Mudd's,  but  out  in 
the  woods.  Besides  him,  there  was  a  Captain 
White,  from  Tennessee,  they  said;  a  Captain 
Perry,  Lieutenant  Perry,  Andrew  Gwynn, 
Benjamin  Gwynn,  and  George  Gwynn;  they 
all  slept  in  the  woods.  When  they  came  to 
the  house  to  eat,  Dr.  Mudd  would  put  us 
out  to  watch  if  anybody  came;  and  when 
we  told  them  somebody  was  corning,  they 
would  run  to  the  woods  again,  and  he  would 
make  me  take  the  victuals  out  to  them.  I 
would  set  them  down,  and  stand  and  watch, 
and  then  the  rebs  would  come  out  and  get 
the  victuals.  Surratt  and  Andrew  Gwynn 
were  the  only  two  that  I  saw  come  out  and 
get  them.  I  have  seen  Surratt  in  the  house, 
up  stairs  and  in  the  parlor,  with  Dr.  Mudd. 
They  never  talked  much  in  the  presence  of 
the  family;  they  always  went  oft*  by  them 
selves  up  stairs. 

Some  men  that  were  lieutenants  and  offi 
cers,  came  from  Virginia,  and  brought  letters 
to  Dr.  Sam  Mudd ;  and  he  gave  them  letters 
and  clothes  and  socks  to  take  back.  They 
were  dressed  in  gray  coats,  trimmed  up  with 
yellow;  gray  breeches,  with  yellow  stripes 
down  the  leg.  After  Dr.  Mudd  shot  my 
brother,  Elzee  Eglent,  one  of  his  slaves,  he 
said  he  should  send  him  to  Richmond,  to 
build  batteries,  I  think  he  said. 

Cross-examined  by  MR.  EWING. 

It  was  about  four  years  ago,  that  Dr.  Mudd 
said  that  Mr.  Lincoln  came  through,  dressed 
in  woman's  clothes;  he  said  it  at  the  table. 
Dr.  Mudd  never  slept  in  the  woods,  only  the 
men  that  used  to  come  there;  the  bed-clothes 
were  taken  out  into  the  woods  to  them. 

I  am  sure  I  saw  Mr.  Surratt  there  a  dozen 
times  last  summer.  I  do  not  think  he  slept 
in  the  house  any  time;  none  of  them  ever 
did,  but  Watt  Bowie.  The  last  time  I  saw 
Mr.  Surratt  there,  apples  and  peaches  were 
ripe.  I  do  not  know  what  month  it  was. 
Fie  said  he  was  going  to  Washington  then. 
He  took  dinner  there  six  or  seven  times  last 
summer;  but  when  the  men  from  Washing 
ton  were  after  them,  they  got  scared,  and  ate 
in  the  woods.  Mr.  William  Mudd,  Vincent 
Mudd,  and  Albert  Mudd  saw  Mr.  Surratt 
there;  they  all  visited  the  house  while  the 
rebs  were  about.  When  Sylvester  Mudd 
and  some  others  came,  they  would  run  out 
of  the  way.  A  young  man  named  Albion 
Brooke  saw  Mr.  Surratt  at  Dr.  Mudd's  sev- 


TESTIMONY   CONCERNING   SAMUEL   A.  MUDD. 


171 


eral  times  last  summer.  It  was  winter  when 
Surratt  commenced  to  come  there,  and  he 
kept  coming,  on  and  off,  till  summer  was 
out;  and  after  that  I  did  not  see  him.  He 
used  to  go  to  Virginia  and  come  back,  and 
to  Washington  and  back,  and  every  time  he 
would  bring  the  news.  Sometimes  he  would 
come  once  a  week,  and  then  again  he  might 
not  come  for  two  weeks. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Albion  Brooke  was  a  white  man ;  Dr.  Sam 
uel  Mudd's  wife  was  his  aunt.  He  sometimes 
worked  out  in  the  field  where  the  colored 
people  were. 

ELZEE  EGLENT  (colored.) 
For  the  Prosecution — May  25. 

I  know  Dr.  Samuel  Mudd ;  he  was  my 
boss;  yonder  he  is,  [pointing  to  the  accused, 
Samuel  A.  Mudd.]  1  was  his  slave,  and  lived 
with  him.  I  left  him  on  the  20th  of  the 
August  before  the  last. 

Q.  Did  he  say  any  thing  to  you  before  you 
left  him  about  sending  you  to  Richmond? 

A.  Yes,  sir;  he  told  me  the  morning  he 
shot  me  that  he  had  a  place  in  Richmond  for 
me. 

Mr.  EWING.  I  object  to  that  question  and 
the  answer. 

The  JUDGE  ADVOCATE.  The  object  of  the 
question  is  to  show  disloyalty. 

The  Commission  overruled   the  objection. 

WITNESS.  He  told  me  he  had  a  place  in 
Richmond  for  me  when  I  should  be  able  to 
go  away.  He  did  not  say  what  I  was  to  do 
there.  That  was  the  June  before  the  last. 
He  named  four  more  that  he  said  he  was 
going  to  send  to  Richmond — Dick  and  my 
two  brothers,  Sylvester  and  Frank. 

I  saw  men  come  to  Dr.  Mudd's,  dressed 
some  in  black  clothes  and  some  in  gray;  gray 
jackets,  coat-like,  and  gray  breeches.  One 
of  them,  Andrew  Gwynn,  I  had  seen  before; 
the  others  I  did  not  know.  They  used  to 
sleep  in  the  woods,  about  a  quarter  of  a  mile 
off,  I  reckon,  and  would  come  to  the  house 
at  different  times,  and  go  back  to  the  woods. 
I  don't  know  where  they  got  their  victuals, 
but  I  have  seen  victuals  going  that  way  often 
enough  ;  I  have  seen  my  sister,  Mary  Simms, 
carrying  them.  That  was  in  the  June  and 
July  before  the  last. 

Cross-examined  by  MR.  EWING. 

Nobody  but  Dr.  Mudd  and  myself  were 
present  when  he  told  me  he  was  going  to  send 
me  to  Richmond;  he  told  me  so  up  stairs. 

SYLVESTER  EGLENT  (colored.) 
For  the  Prosecution. — May  25. 

I  used  to  live  about  a  quarter  of  a  mile 
from  the  house  of  Dr.  Samuel  Mudd;  I  lived 
with  his  father. 


Q.  State  whether  you  heard  him  say  any 
thing,  at  any  time,  about  sending  men  to 
Richmond;  and,  if  so,  what  he  said,  and  to 
whom  he  was  talking. 

A.  Last  August,  a  twelvemonth  'ago,  I 
heard  him  say  he  was  going  to  send  me, 
Elzee,  my  brother,  Frank,  and  Dick  Gardner, 
and  Lou  Gardner  to  Richmond  to  build  bat 
teries. 

Mr.  EWING  objected  to  the  question  and 
answer. 

The  Commission  overruled  the  objection. 

WITNESS.  That  was  the  last  Friday  in  the 
August  before  last,  and  I  left  the  next  night. 
Forty  head  of  us  went  in  company. 

Cross-examined  by  MR.  EWING. 

When  I  heard  Dr.  Mudd  say  this  he  was 
standing  at  my  old  master's  front  gate,  under 
the  oak-tree,  where  their  horses  were,  talking 
to  Walter  Bowie  and  Jerry  Dyer. 

MELVINA  WASHINGTON  (colored.) 
For  the  Prosecution. — May  25. 

I  used  to  live  with  Dr.  Samuel  Mudd;  I 
was  his  slave;  I  see  him  there,  [pointing  to 
the  accused,  Samuel  A.  Mudd.]  I  left  him 
this  coming  October  two  years.  The  last 
summer  I  was  there  I  heard  him  say  that 
President  Lincoln  would  not  occupy  his  seat 
long.  There  was  a  heap  of  gentlemen  in  the 
house  at  the  time,  but  I  do  not  know  who 
they  were.  Some  had  on  gray  clothes,  and 
some  little  short  jackets,  with  black  buttons, 
and  a  little  peak  on  behind.  Sometimes 
they  staid  in  the  house,  and  sometimes  slept 
in  the  pines  not  far  from  Dr.  Mudd's  spring. 
Dr.  Mudd  carried  victuals  to  them  sometimes, 
and  once  he  sent  them  by  Mary  Simms.  I 
happened  to  be  at  the  house  one  time  when 
they  were  all  sitting  down  to  dinner,  and  they 
had  two  of  the  boys  watching;  and  when 
they  were  told  somebody  was  coming,  these 
men  rushed  from  the  table  to  the  side  door, 
and  went  to  the  spring. 

I  heard  Dr.  Mudd  say  one  day,  when  he 
got  mad  with  one  of  his  men,  that  he  would 
send  him  to  Richmond,  but  I  did  not  hear 
him  say  what  he  was  to  do  there. 

Cross-examined  ly  MR.  EWING. 

Those  men  that  staid  in  the  woods  were 
there  for  a  week  or  more,  and  they  went 
away  in  the  night;  I  do  not  know  where  to. 
I  noticed  them  up  at  the  house  seven  or  eight 
times  during  that  week,  and  never  saw  them 
there  at  any  other  time.  I  do  not  know  the 
names  of  any  but  Andrew  Gwynn.  I  do  not 
know  of  any  white  people  that  saw  these  men 
but  Dr.  Mudd  and  his  wife,  and  two  colored 
women,  Rachel  Spencer  and  Mary  Simms.  I 
did  not  stay  about  the  house;  but  when  there 
was  company  I  had  to  go  up  on  account  of 
the  milking,  and  that  was  how  1  happened 
to  see  them. 


172 


THE    CONSPIRACY   TRIAL. 


MILO  SIMMS  (colored.) 
For  the  Prosecution. — May  25. 

I  was  a  slave  of  Dr.  Samuel  Mudd,  and 
lived  with  him.  There  he  is,  [pointing  to  the 
prisoner,  Dr.  Mudd.]  I  left  his  house  on  the 
Friday  before  last  Christmas.  The  last  sum 
mer  I  was  there,  I  saw  two  or  three  men  there, 
that  sometimes  staid  in  the  house  and  some 
times  out  by  the  spring,  up  among  the  bushes. 
They  had  on  plaid  gray  clothes,  and  one  had 
stripes  and  brass  buttons  on.  I  saw  their 
bed  among  the  bushes;  it  was  fixed  under  a 
pine  tree;  rails  were  laid  at  the  head  and 
blankets  spread  out.  They  got  their  victuals 
from  Dr.  Samuel  Mudd's;  sometimes  he  car 
ried  them  out  himself,  and  sometimes  my 
sister  carried  them.  iShe  would  lay  them 
down  at  the  spring,  and  John  Surrattor  Billy 
Simms  took  them  away.  I  heard  John  Sur- 
ratt  called  by  that  name  in  the  house;  Dr. 
Samuel  Mudd's  wife  called  him  so  in  Dr. 
Mudd's  presence.  He  was  a  spare  man,  slim, 
pale  face,  light  hair,  and  no  whiskers.  When 
he  was  in  the  house,  Dr.  Mudd  told  his  son  and 
some  of  the  children  to  stay  out  of  doors  and 
watch,  and  if  anybody  was  corning  to  tell  him. 

Last  year,  about  tobacco-planting  time,  I 
heard  Ben  Gardiner  tell  Dr.  Samuel  Mudd, 
in  Beantown,  that  Abe  Lincoln  was  a  God 
damued  old  son  of  a  bitch,  and  ought  to 
have  been  dead  long  ago ;  and  Dr.  Mudd 
said  that  was  much  of  his  mind. 

Cross-examined  by  MR.  STONE. 

I  worked  in  the  field,  but  sometimes  was 
at  the  house  to  take  the  horses  from  the  men 
who  came  there.  I  reckon  I  am  about  four 
teen  years  old.  I  do  not  know  whether  I 
would  know  Mr.  Surratt  now;  I  knew  him 
last  summer.  He  was  not  shown  to  me  by 
any  one.  Dr.  Samuel  Mudd  came  out  to  me 
and  said,  "Take  Mr.  Surratt' s  horse  to  the 
stable  and  feed  him."  He  staid  all  night 
that  time.  I  only  saw  him  there  two  or  three 
times.  Mr.  Billy  Simms,  Mr.  Perry,  and  a 
man  named  Charley  something,  I  forget  what, 
came  with  him.  Beantown  is  about  three  or 
four  miles  from  the  house ;  I  had  been  there 
with  Dr.  Mudd  for  some  meat  when  I  heard 
that  talk  between  him  and  Ben  Gardiner.  It 
was  not  two  years  ago,  it  was  last  summer; 
there  were  some  more  gentlemen  present, 
but  I  did  not  know  them. 

I  have,  never  seen  Andrew  Gwynn  with 
Surratt  at  Dr.  Mudd's  house;  I  have  seen 
them  at  Dr.  Mudd's  father's  house,  with  Jerry 
Dyer  and  Dr.  Blanford.  I  saw  them  all  there 
last  yea  n  tobacco-planting  time. 

RACHEL  SPENCER  (colored.) 
For  the  Prosecution. — May  25. 

I  was  the  slave  of  Dr.  Samuel  Mudd.  I 
see  him  among  the  prisoners  there,  [pointing 
to  the  accused,  Samuel  A.  Mudd.]  I  left  his 
house  in  January  last. 


I  remember  some  five  or  six  men  being 
there  at  one  time  last  summer;  I  think  they 
were  dressed  in  black  and  blue.  Some  of 
them  slept  in  the  pines  near  Dr.  Mudd's 
spring.  They  got  their  victuals  from  his 
house;  Dr.  Mudd  took  them  out  himself 
sometimes.  The  men  would  come  up  to  the 
house  sometimes,  and  then  I  have  heard  that 
the  boys  had  to  go  to  the  door  and  watch  to 
see  if  any  body  was  coming.  I  only  remem 
ber  the  names  of  Andrew  Gwynn  and  Walter 
Bowie.  There  was  a  young-looking  man 
among  them  once;  I  do  not  know  his  name; 
he  was  not  very  tall,  but  slender  and  fair. 

I  heard  Dr.  Mudd  tell  one  of  his  men  that 
he  was  going  to  send  him  down  to  Rich 
mond;  I  don't  know  what  he  was  to  do 
there. 

Cross-examined  by  MR.  STONE. 

Those  men  that  were  at  Dr.  Mudd's  last 
summer  came  all  together,  staid  about  a 
week,  and  went  away  together.  Their  horses 
were  in  the  stable.  I  saw  them  two  or  three 
times  that  week,  but  I  don't  remember  see 
ing  them  before  or  after.  Albion  Brooke 
was  there  at  that  time;  he  used  to  go  with 
them  ;  they  were  always  together. 

WILLIAM  MARSHALL  (colored.) 
For  the  Prosecution. — May  25. 

I  was  a  slave  until  the  year  1863,  when  I 

fot  away  from  home.  I  belonged  to  Mr. 
Millie  Jameston.  Of  late  I  have  lived  near 
Dr.  Samuel  Mudd;  I  see  him  here  now, 
[pointing  to  the  accused,  Dr.  Mudd.]  I 
know  Benjamin  Gardiner,  one  of  his  neigh 
bors;  he  was  my  wife's  master. 

Q.  State  whether  you  heard  any  conversa 
tion  between  Benjamin  Gardiner  and  Dr. 
Samuel  A.  Mudd  about  the  rebels,  and  their 
battle  with  the  Union  forces  on  the  Rappa- 
h  an  nock. 

Mr.  EWING  objected  to  the  question  on  the 
ground  heretofore  stated  by  him  with  refer 
ence  to  similar  questions. 

The  Commission  overruled  the  objection. 

A.  Yes,  sir;  I  did.  On  Saturday,  soon 
after  the  battle  at  the  Rappahannock,  I  hap 
pened  to  be  home.  I  had  every  other  Sat 
urday.  My  wife  being  sick,  the  Doctor  had 
been  to  see  her,  and  when  he  came  out  Mr. 
Gardiner  met  him  at  the  corner  of  the  house, 
and  said  to  him,  "  We  gave  them  hell  down 
on  the  Rappahannock;  "  and  the  Doctor  said 
"Yes,  we  did."  Then  he  said,  "Damned  if 
Stonewall  ain't  the  best  part  of  the  devil;  I 
don't  know  what  to  compare  him  to." 

Q.  Who  said  that  he  was  the  best  part  of 
the  devil. 

A.  Benjamin  Gardiner.  The  Doctor  said 
Stonewall  was  quite  a  smart  one.  Then 
Benjamin  Gardiner  said,  "Now  he  has  gone 
around  up  in  Maryland,  and  he  is  going  to 
cross  over  on  the"  Point  of  Rocks  some 
where"— he  did  say  at  that  time,  but  I  really 


TESTIMONY   CONCERNING   SAMUEL   A.   MUDD. 


173 


forget  now,  where  he  was  going  to  cross  at 
the  Point  of  Rocks — "and  I  would  not  be 
the  least  surprised  if  very  soon  from  this" — 
he  stated  at  what  time,  but  I  forget  at  what 
length  of  time  lie  said — "  he  will  be  down 
here  and  take  the  capital  of  Washington, 
and  soon  have  old  Lincoln  burned  up  in  his 
house;  "  and  Dr.  Mudd  said  he  would  not  be 
the  least  surprised;  he  made  no  objection 
to  it. 

DANIEL  J.  THOMAS. 

For  the  Prosecution. — May  18. 

I  am  acquainted  with  Dr.  Mudd.  About 
two  months  ago,  some  time  in  the  latter  part 
of  March,  I  had  a  conversation  with  Dr. 
Mudd  at  John  S.  Downing's,  who  lives  close 
by  me  and  about  a  mile  and  a  quarter  from 
Dr.  Mudd's.  We  were  engaged  in  conversa 
tion  about  the  politics  of  the  day.  I  made 
a  remark  to  Dr.  Mudd  that  the  war  would 
soon  be  over;  that  South  Carolina  was  taken, 
and  I  thought  Richmond  would  soon  be,  and 
that  we  would  soon  have  peace.  He  then 
said  that  Abraham  Lincoln  was  an  aboli 
tionist,  and  that  the  whole  Cabinet  were 
such  ;  that  he  thought  the  South  would  never 
be  subjugated  by  abolition  doctrine,  and  he 
went  on  to  state' that  the  President,  Cabinet, 
and  other  Union  men  in  the  State  of  Mary 
land  would  be  killed  in  six  or  seven  weeks. 

Cross-examined  by  MR.  STONE. 

Mr.  Downing  was  at  home  when  we  had 
this  conversation,  though  I  believe  he  was  out 
at  the  time  this  portion  of  the  conversation 
took  place;  he  had  gone  out  to  the  kitchen, 
or  to  the  wood-pile,  or  somewhere  else.  After 
his  return,  I  asked  him  if,  after  having  taken 
the  oath  of  allegiance,  he  would  consider  it 
binding.  That  was  all  that  occurred  after  Mr. 
Downing  returned.  I  did  not  remain  there 
more  than  half  an  hour  or  three-quarters  of 
an  hour;  that  is  the  only  time  I  have  met  Dr. 
Mudd  at  Mr.  Downing's  this  year.  From  Dr. 
Mudd's  conversation  he  did  not  seem  to  be 
joking,  but  it  is  impossible  for  me  to  say 
whether  or  not  he  was  earnest  in  what  he  said. 
He  did  not  look  as  if  he  was  angry  or  speak 
in  malice.  I  can  not  judge  whether  a  man  is 
in  earnest  or  not  from  the  language  he  uses; 
but  I  should  think  a  man  was  in  earnest  to 
talk  of  the  President  being  assassinated. 

Q,  Did  you  think  at  the  time  that  he  was 
in  earnest? 

A.  No,  sir.  I  did  not  think  any  such  thing 
would  ever  come  to  pass.  I  thought  the 
President  was  well  guarded,  and  that  it  was 
a  want  of  sense  on  his  part  saying  so.  I 
laughed  to  think  that  the  man  had  no  more 
sense. 

When  Dr.  Mudd  first  said  it,  I  thought 
he  meant  it,  but  after  a  day  or  two  I  thought 
he  certainly  could  not  have  meant  it;  but 
after  the  President  was  killed,  and  after  hear 
ing  that  Booth  was  at  his  house,  I  thought  he 
really  meant  it. 


Q.  You  thought  it  was  a  mere  joke  at  the 
time,  from  the  way  he  said  it? 

A.  lie  was  laughing  at  the  time,  or  some 
thing  like  it.  I  know  Dr.  Mudd;  we  went  to 
school  together,  and  when  he  was  a  boy  he 
was  full  of  fun  and  jokes. 

I  spoke  of  what  Dr.  Mudd  had  said  to 
almost  everybody  I  saw,  but  everybody 
laughed  at  the  idea  of  such  a.  thing.  I  told 
Mr.  Lemuel  Watson,  a  good  Union  man,  of 
this  conversation  before  the  assassination, 
and  I  also  wrote  to  Colonel  Holland,  Provost- 
Marshal  of  the  Fifth  Congressional  District 
of  Maryland;  but  I  never  received  an  answer 
from  him.  I  had  written  to  him  several 
times  before,  but  had  never  received  an  an 
swer  and  I  concluded  that  my  letter  must  have 
been  miscarried.  I  mailed  the  letter  at  Horse- 
head,  and  directed  it  to  Ellicott  Mills.  I 
mentioned  the  conversation  I  had  with  Dr. 
Mudd,  after  the  assassination,  to  my  brother, 
Dr.  M.  C.  Thomas,  and  Mr.  Peter  Wood,  and 
to  several  others  in  Bryantown,  when  they 
were  looking  for  Booth. 

I  am  positive  that  nothing  was  said  be 
tween  Dr.  Mudd  and  myself  about  exempting 
drafted  men,  nor  had  we  been  speaking  of 
desertions  from  the  rebel  army  or  from  the 
Union  army,  and  that  the  conversation  re 
lated  is  substantially  all  that  occurred. 

Two  or  three  weeks  after  this  conversation, 
but  before  the  assassination,  I  believe,  I  men 
tioned  it  to  Mr.  Downing.  He  said  he  did 
not  hear  it,  and  he  said,  "  Well,  if  that  be  the 
case,  I  am  glad  I  was  not  in  there."  I 
thought  if  he  had  heard  it  he  would  not  have 
said  any  thing  about  it.  This  conversation 
with  Mr.  Downing  occurred  when  I  met  him 
on  the  road  leading  from  his  house  to  Horse- 
head.  Mr.  Downing  said  it  was  only  a  joke 
of  Dr.  Mudd's;  that  he  was  always  running 
on  his  joking  ways.  When  Mr.  Downing 
returned  to  the  room,  Dr.  Mudd  did  not  say 
to  him  that  I  had  been  calling  the  Southern 
army  "our  army." 

Cross-examined  by  MR.  EWING. 

Mr.  Downing  was  out  of  the  room  long 
enough  to  get  some  wood,  and,  to  the  best  of 
my  recollection,  he  brought  in  some.  We 
had  no  further  conversation  after  he  came  in, 
only  I  saitf,  "  You  are  a  man  who  took  the 
oath ;  do  you  consider  it  binding  ?"  He  said, 
"No;"  he  did  not  consider  it  binding;  if  a 
man  was  compelled  to  take  an  oath,  he  did 
not  consider  it  binding.  I  told  him  nobody 
was  going  to  kill  him ;  it  was  not  compulsory 
for  him  to  take  the  oath.  He  said  he  thought 
it  was  compulsion. 

After  Mr.  Downing  came  in,  Dr.  Mudd  did 
not  say  another  word.  I  just  got  up  and 
asked  Mr.  Downing  one  or  two  questions;  if 
he  had  taken  the  oath,  and  he  said  he  naff 
taken  the  oath,  but  that  he  was  no  more  loyal 
than  he  was  before ;  that  he  always  was  a  loyal 
man;  that  his  feeling  was  for  State  rights; 


174 


THE    CONSPIRACY    TRIAL. 


but  that  he  did  not  consider  that  oath  bind 
ing  upon  any  person. 

Before  that  I  had  said  to  Dr.  Mudd  that 
he,  having  taken  the  oath,  ought  not  to  say 
such  things  about  the  President.  He  said 
he  did  not  consider  the  oath  worth  a  chew 
of  tobacco.  It  was  in  consequence  of  such 
expressions,  and  knowing  that  Mr.  Downing 
had  been  a  justice  of  the  peace,  that  I  wanted 
to  know  if  he  considered  the  oath  binding.  I 
said  nothing  to  Mr.  Downing  about  my  being 
a  marshal  or  deputy  marshal,  or  about  my 
having  a  commission  from  General  Wallace, 
or  of  having  received  any  letters  from  him. 

I  told  my  brother  of  the  conversation  I 
had  had  with  Dr.  Mudd  at  Church  or  before 
Church.  I  told  Mr.  Watson  when  he  was  at 
my  mother's  one  day.  When  I  mentioned  it 
to  him,  he  laughed  heartily;  after  that  I 
could  not  help  laughing.  He  said,  "  Dr. 
Mudd  only  did  that  to  scare  you.  Every 
body  knows  that  such  a  thing  is  never  going 
to  come  to  pass." 

Recalled  for  the  Prosecution. — June  6. 

I  was  at  William  Watson's  door-yard,  near 
Horsehead,  on  the  1st  of  June,  with  John 
R.  Richardson,  Benjamin  J.  Naylor,  George 
Lynch,  Lemuel  Watson,  and  William  Wat- 
eon,  when  James  W.  Richards,  the  magis 
trate,  rode  up.  I  did  not  state  to  Mr.  Richards 
that  I  had  been  asking  any  of  these  gentle 
man  for  a  certificate  to  the  fact  that  I  was 
the  first  to  give  information  which  led  to  the 
arrest  of  Dr.  Samuel  Mudd,  and  that  if  they 
would  give  me  a  certificate  I  should  be  en 
titled  to  the  reward  of  $10,000;  but  what  I 
did  say  was,  that  I  had  been  told  in  Wash 
ington,  by  some  of  Colonel  Baker's  men,  that 
I  was  entitled  to  so  much  reward  if  Dr. 
Mudd  was  convicted.  But  I  said  that  I  never 
expected  or  looked  for  a  cent,  but  that  I 
would  be  very  glad  to  receive  the  reward  if 
it  were  so.  I  knew  these  fellows  said  it  in  a 
joke,  and  I  told  it  as  a  joke.  I  did  not  tell 
Mr.  Richards  that  I  had  been  saying  that  I 
was  the  person  who  gave  the  information  that 
led  to  the  arrest  of  Dr.  Mudd.  As  it  had 
been  said  that  if  I  had  told  anybody  before 
the  assassination,  I  would  be  entitled  to  a 
certain  part  of  the  reward  if  Dr.  Samuel 
Mudd  was  convicted,  I  inquired  of  them  if 
they  thought  I  would  be  entitled  to  it;  but 
I  never  did  ask  them  for  a  certificate  of  the 
fact  that  I  had  given  the  information.  1 
told  them  that  I  had  mentioned  it  to  some 
persons  before  and  to  some  since  the  assas 
sination.  I  do  not  myself  remember  whether 
it  was  before  or  after  the  assassination. 

Q.  And  you  did  not  ask  either  of  the  gen 
tlemen  I  have  named  for  a  certificate  of  the 
fact  that  *you  were  the  first  person  who  gave 
the  information  which  led  to  Dr.  Samuel 
Mudd's  arrest. 

A.  Never.  I  just  said  to  them,  "You  can 
Bay  I  mentioned  it  before  the  assassination; 
you  can  give  me  a  certificate,  and  I  will  have 


you  summoned  to  prove  it."  They  said,  "  No, 
we  did  not  hear  you  then."  Said  I,  "  Will 
you  give  me  a  piece  of  paper  to  show  that  I 
mentioned  it  to  you  before  the  assassination?1' 
"No,"  they  said,  they  did  not  hear  it;  because 
they  were  afraid  I  would  have  them  sum 
moned. 

Q.  What  did  you  ask  for  a  paper  for? 

A.  To  certify  that  I  had  said  such  a  thing 
before  the  arrest  of  Dr.  Mudd. 

I  certainly  did  not  say  to  Eli  J.  Watson, 
on  the  1st  of  June,  before  meeting  these  gen 
tlemen,  that  I  wanted  him  to  certify  that  I 
had  been  the  cause  of  the  arrest  of  Dr.  Mudd, 
or  that  I  had  given  any  information  which 
led  to  his  arrest,  and  for  which  I  was  entitled 
to  $25,000,  for  I  never  did  give  any  informa 
tion  which  led  to  the  arrest  of  Dr.  Mudd. 
Dr.  Mudd  was  arrested  before  I  knew  it.  I 
never  thought  of  such  a  thing  as  being  enti 
tled  to  a  reward.  I  looked  upon  Colonel 
Baker's  men  saying  it  as  a  joke  at  the  time, 
I  never  looked  ifor  or  expected  such  a  thing, 
and  more  than  that,  I  never  would  have  a 
reward. 

When  I  was  on  the  stand  before,  Mr. 
Stone  wanted  to  know  if  I  had  mentioned 
the  conversation  with  Dr.  Mudd  to  anyone 
before  the  assassination.  When  these  men 
told  me  that  I  had  mentioned  this  conversa 
tion  to  them  before  the  assassination,  I  then 
asked  them  if  they  would  sign  a  paper  to 
show  the  Court  that  I  had  mentioned  it  be 
fore.  That  was  my  object  in  asking  them  to 
sign,  and  that  is  the  only  paper  I  asked  them 
to  sign. 

WILLIAM  A.  EVANS. 

For  the  Prosecution. — June  5. 

About  the  1st  or  2d  of  March  last — cer 
tainly  before  inauguration  day — I  saw  Dr. 
Samuel  Mudd,  with  whom  I  have  a  slight  ac 
quaintance,  drive  past  me  as  I  was  driving  to 
the  city  in  the  morning.  He  passed  me,  I 
think,  about  eight  miles  from  the  city.  He 
had  a  fiery  horse,  and  as  I  wished  to  take 
my  time,  I  let  him  drive  past  me,  but  I  fol 
lowed  him  up  to  the  city,  never  losing  sight 
of  him. 

Cross-examined  by  MR.  EWING. 

I  have  seen  Dr.  Mudd  at  different  timea 
for  the  last  fifteen  years,  though  I  never  was 
introduced  to  him.  I  have,  I  think,  met  Dr. 
Mudd  at  different  places  in  the  city,  and  at 
the  National  Hotel.  Last  winter  I  saw  him 

f~o  into  the  house  of  Mrs.  Surratt  on  H  Street; 
could  not  say  positively  where  the  house 
is;  it  may  be  between  Ninth  and  Tenth 
Streets,  or  between  Eighth  and  Ninth  Streets; 
somewhere  along  there.  I  asked  a  police 
man,  and  a  lady  who  was  on  the  sidewalk, 
whose  house  it  was,  and  was  told  it  was 
Mrs.  Surratt's.  I  had  seen  rebels  going  in 
there — Judson  Jarboe  and  others — and  I 
wished  to  know  who  lived  there.  It  was  a 
brick  house,  of  perhaps  two  stories  and  an 


TESTIMONY   CONCERNING   SAMUEL   A.    MUDD. 


175 


attic,  and  is,  I  think,  between  the  Patent 
Office  and  the  President's  house,  and  is  on 
the  right-hand  side  going  toward  the  Capitol. 

[The  witness,  at  the  reqnrst  of  the  counsel,  described 
Mrs.  Surratt's  house  and  neighborhood,  but  did  it  some 
what  indefinitely.] 

I  was  riding  down  the  street,  going  to  see 
the  Rev.  J.  G.  Butler,  of  the  Southern  Church, 
and  at  the  same  time  call  in  at  the  Union 
Prayer  Meeting.  There  were  members  of 
different  Churches  assembled  there,  but  I 
could  not  name  any  but  Ulysses  Ward  that 
I  saw  there.  On  the  same  day  I  saw  Mrs. 
Sophia  Press}'  and  Miss  Pumphrey  at  their 
houses,  and  I  saw  them  also  at  different 
times  during  the  winter. 

I  keep  a  journal  of  the  visits  I  make,  bap 
tisms,  deaths,  etc.,  but  I  did  not  put  Dr. 
Mudd's  name  in  that,  and  I  could  not  refer 
to  this  journal  because  it  would  be  impossible 
for  me  to  get  possession  of  my  books  now. 
I  was  then  moderator  of  the  Presbytery  of 
the  District  of  Columbia,  and  our  books  are 
not  allowed  to  be  taken  out  of  the  churches. 
The  Rev.  Henry  Highland  Garnett,  colored, 
is  pastor  of  that  Church  now,  and  the  journal 
of  my  baptisms,  marriages,  and  deaths  is  in 
his  possession,  but  if  a  hundred  such  journals 
were  here,  they  would  have  no  effect  in  fixing 
the  date  when  I  saw  Dr.  Mudd  go  into  Mrs. 
Surratt's  house.  I  visited  other  families  that 
day,  but  I  can  not  remember  their  names 
now.  I  am  so  confused  at  present  that  I  can 
not  recollect.  I  have  been  so  confused  since 
the  death  of  President  Lincoln  that  I  really 
at  times  am  bordering  on  insanity  almost.  I 
never  got  such  a  shock  in  my  life. 

I  was  in  my  buggy  when  I  passed  Mrs. 
Surratt's  house.  Dr.  Mudd  had  on  dark- 
colored  clothes,  I  believe,  with  some  kind  of 
dark-brown  overcoat,  and  a  dark  slouch  hat 

Q.  Now  state  how  it  is  that  you  are  enabled 
to  fix  the  date  from  the  1st  to  the  3d  of 
March  as  being  the  day  on  which  you  saw 
Dr.  Mudd  riding  into  town. 

A.  I  hold  a  position  in  the  Post-office  De 
partment,  and  I  was  making  arrangements 
to  come  up  to  the  inauguration  on  the  4th 
of  March ;  and  I  was  coming  up  very  early 
on  those  mornings  to  do  extra  work,  in  order 
to  be  present  at  the  inauguration.  Dr.  Mudd 
drove  on  past  me.  My  horse  got  scared  at 
the  time,  and  was  very  near  throwing  me 
out  I  remarked,  as  he  passed  by,  how  rude 
lie  was  in  almost  knocking  his  wheel  against 
my  buggy ;  and  I  came  home  and  told  rny 
wife  I  was  very  near  being  thrown  out.  I 
have  only  one  leg,  and  it  is  difficult  for  me 
to  get  along.  I  could  not  get  out  of  my  buggy 
if  the  horse  ran  away. 

Q.  When  did  you  commence  this  extra 
work,  so  as  to  be  enabled  to  attend  the  in 
auguration  ? 

A.  Several  days  before  the  inauguration. 

Q.  Three  or  four  days  before? 

A.  About  the  latter  part  of  February.  I 
always  like  to  discharge  my  duty,  I  have  a 


certain  amount  of  work  to  do,  and  I  want  to 
do  it. 

Mr.  EWING.  We  do  not  want  your  per 
sonal  history. 

WITNESS.  You  seem  to  be  so  precise,  I 
want  to  give  you  every  thing  connected 
with  it. 

Mr.  EWIXG.  We  are  not  so  precise  as  to 
your  personal  history. 

WITNESS.  A  little  of  it  will  not  do  you 
any  harm. 

Mr.  EWING.  I  do  not  think  it  will  do  any 
good  in  this  case. 

WITNESS.  We  are  all  free  and  equal  men, 
and  can  talk  as  we  please. 

Mr.  EWING.  If  the  Court  wishes  this  ex 
amination  continued  perpetually,  this  witness 
may  be  indulged  in  his  lucubrations  as  to  his 
history  and  answers  to  every  thing  except  the 
questions  that  I  propose.  I  ask  the  Court  to 
restrain  him  to  enable  me  to  get  through  the 
examination. 

The  PRESIDENT.  The  witness  has  been  told 
once  that  he  must  reply  to  the  questions. 

WITNESS.  I  have  answered  every  question 
that  he  has  asked  me,  to  the  best  of  my 
ability. 

The  PRESIDENT.  We  do  not  want  any 
thing  else  but  answers  to  the  questions. 

WITNESS.     Very  well,  I  will  answer  them. 

The  PRESIDENT.  If  you  do  not  do  as  you 
are  directed,  we  will  try 

WITNESS.     And  make  me  do  it. 

The  PRESIDENT.     Yes,  sir. 

WITNESS.  Dr.  Mudd  drove  a  two-seated 
carriage;  it  is  what  is  termed  a  rockaway. 

When  I  saw  Dr.  Mudd  going  into  Mrs. 
Surratt's  house,  Mr.  Judson  C.  Jarboe  was 
coming  out.  I  saw  him  shaking  hands  with 
a  lady  at  the  door  as  Mudd  was  going  in.  I 
took  the  lady  to  be  Miss  Surratt  from  her 
likeness  to  her  mother.  Jarboe  had  mur 
dered  one  of  our  citizens,  and  I  wanted  to 
know  who  lived  at  the  house  he  was  visiting. 

I  can  not  say  when  last  I  saw  Dr.  Mudd 
before  the  time  I  have  referred  to;  he  passed 
often  on  the  road  during  last  winter.  I  think 
I  once  saw  him  coming  up  with  Herold, 
[pointing  to  the  accused  David  E.  Herold.] 
It  might  have  been  a  year  ago. 

Cross-examined  by  MR.  CLAMPITT. 

It  might  have  been  about  11  o'clock  when 
I  saw  Jarboe  come  out  of  the  house  as  Mudd 
was  going  in. 

Q.  Did  you  not  say  that  you  were  on  your 
way  to  a  prayer  meeting  at  the  time? 

A.  No,  sir;  I  was  on  my  way  to  see  Dr. 
Butler.  I  said  I  was  on  my  way  to  visit 
some  families,  and  then  in  that  neighborhood 
to  go  to  prayer  meeting.  Being  lame,  I  take 
pains  to  arrange  my  journeys  so  as  not  to  go 
over  the  same  ground  again. 

Cross-examined  by  MR.  AIKEN. 

I  am  a  minister  now,  and  have  been  for 
fifteen  years.  I  hold  a  secret  commission 


176 


THE    CONSPIRACY    TRIAL. 


under  the  Government  to  arrest  deserters 
and  disloyalists  wherever  I  find  them.  I  am 
a  detective.  I  wish  to  discharge  my  duty 
toward  the  Government  to  the  best  of  my 
ability,  but  have  never  received  one  cent  for 
any  duty  of  that  kind. 

[This  witness  was  exceedingly  discursive,  and  his  exam 
ination  was  consequently  very  lengthy.  The  above  narra 
tion  contains  all  the  material  facts  testified  to.]  » 

JOHN  II.  WARD. 

For  the  Prosecution. — May  20. 

I  live  in  the  suburbs  of  Bryantown,  Mary 
land.  On  Saturday,  the  15th  of  April,  I 
went  to  the  village  as  soon  as  I  had  finished 
my  dinner,  and  was  there  at  about  1  o'clock. 
As  soon  as  I  arrived,  I  observed  that  the 
military  were  in  town  with  Lieutenant  Dana, 
and  that  there  was  great  excitement  among 
the  people  as  well  as  the  military.  I  went 
home,  expecting  that  the  soldiers  would 
search  the  houses.  Soon  afterward  a  negro 
came  up  and  said  the  President  had  been 
assassinated.  I  immediately  left  home  and 
went  again  to  the  village.  There  I  heard 
of  the  assassination.  I  also  heard  that  the 
assassin's  name  was  Booth.  It  was  spoken 
of  by  everybody  at  Bryantown;  first  by  the 
military,  and  then  by  the  citizens,  and  it  was 
spread  about  that  Booth  was  the  assassin.  I 
heard  this,  I  suppose,  between  1  and  2  o'clock. 

The  village  was  put  under  martial  law, 
and  many  of  the  people  began  to  be  excited 
about  getting  home,  and  made  application  to 
the  commanding  officer  to  let  them  go,  but 
he  refused  to  do  so.  I  went  home. 

I  think  I  saw  Dr.  Samuel  Mudd  there,  but 
the  excitement  was  so  great  that  I  can  not 
say  positively  that  I  did. 

Cross-examined  by  MR.  EWING. 

I  could  not  tell  precisely  the  time  1  left 
Bryantown,  the  second  time  I  went  up,  but 
I  suppose  it  was  between  2  and  3  o'clock.  I 
did  not  hear  that  the  President  had  been 
assassinated  the  first  time  before  I  left  Bry 
antown;  the  first  intimation  I  had  of  it  was 
by  the  darkey. 

"Boose"  was  the  name  of  the  assassin,  as 
spoken  by  the  soldiers  who  were  not  familiar 
with  language ;  they  could  not  say  Booth. 

By  MR.  EWING. 

Those  who  spoke  audibly,  told  me  that  his 
name  was  Booth,  and  those  who  seemed  to 
have  an  amalgamation  of  the  languages 
called  it  "Boose." 

The  darkey  who  told  me  that  the  Presi 
dent  was  assassinated  was  Charles  Bloyce, 
a  brother  to  the  one  who  has  just  testified. 
When  he  told  me  that  the  President  had  been 
assassinated,  I  immediately  left  home,  and 
went  to  the  village,  where  I  found  it  a  current 
report.  He  did  not  tell  me  who  did  it. 

My  house,  I  suppose,  is  four  or  five  miles 
from  Dr.  Mudd's.  I  could  not  state  posi 
tively  that  it  was  Dr.  Mudd  I  saw;  the  per 


son  I  supposed  was  the  Doctor  I  saw  about 
a  quarter  of  4  o'clock.  I  am  personally 
acquainted  with  Dr.  Mudd.  and  have  been  so 
for  two  years  and  five  months. 

FRANK  BLOYCE  (colored.) 
For  the  Prosecution. — May  20. 

I  live  in  Charles  County,  Maryland,  about 
half  a  mile  from  Bryantown.  I  was  in  Bry 
antown  on  Saturday  evening  after  the  murder 
of  the  President,  and  saw  Dr.  Samuel  Mudd 
there  between  3  and  4  o'clock.  I  was  in 
the  store  buying  something  when  Dr.  Mudd 
came  in. 

Cross-examined  by  MR.  EWING. 

I  left  Bryantown  before  night.  I  do  not 
know  what  time  Dr.  Mudd  left.  Before 
night  the  place  was  guarded,  and  I  heard 
that  the  President  had  been  assassinated. 

MRS.  ELEANOR  BLOYCE  (colored.) 
For  the  Prosecution. — May  19. 

I  know  the  prisoner,  Dr.  Mudd;  he  lives 
about  four  miles  from  Bryantown,  where  I 
live.  I  saw  him  on  the  15th  of  April  last, 
riding  into  Bryantown  late  in  the  afternoon. 
There  was  a  gentleman  with  him  when  he 
passed.  I  do  not  know  that  they  went  into 
town  together;  they  were  together  until  they 
were  out  of  my  sight.  It  was  but  a  short 
time  until  Dr.  Mudd  returned.  When  he 

ame  back  the  gentleman  was  not  with  him. 
About  eight  or  ten  minutes  after  I  saw  him 
I  went  into  town  myself.  On  arriving  there 
I  found  the  soldiers  from  Washington,  and 

hen  I  heard  of  the  murder  of  the  President; 
that  he  was  shot  on  Friday  night  at  the 
theater.  I  did  not  hear  who  shot  him. 

Cross-examined  by  MR.  STONE. 

When  Dr.  Mudd  passed  the  first  time,  I  saw 
a  gentleman  with  him;  when  he  returned,  I 
did  not  see  the  gentleman  with  him.  I  was  too 
far  from  the  road  to  know  what  kind  of  look 
ing  gentleman  he  was.  1  reckon  I  live  about 
a  quarter  of  a  mile  from  the  road.  I  went  to 
Bryantown  in  a  very  short  time  after  he 
passed  my  house.  1  do  not  think  Dr.  Mudd 
taid  in  Bryantown  a  quarter  of  an  hour, 
but  I  do  not  know,  as  I  have  not  any  thing 
to  tell  by;  it  was  a  dark,  drizzly,  foggy 
evening,  getting  late. 

I  could  not  tell  whether  it  was  an  old  or 
young  gentleman  with  the  Doctor,  he  ap 
peared  to  be  riding  a  bay  horse;  I  think  the 
Doctor  was  riding  a  dark-gray  horse,  but  I 
did  not  take  much  notice.  They  were  riding 
side  by  side  at  a  tolerable  gait,  not  faster 
than  persons  usually  ride  in  the  country. 

I  live  on  the  right  of  the  road  that  leads 
ip  to  Dr.  Mudd's.  There  is  no  road  that 
turns  out  between  my  house  and  Bryantown, 
and  the  man  that  was  with  Dr.  Mudd  was 
obliged  to  go  through  Bryantown,  or  come 
back  the  same  way  as  he  went.  I  was  not 


TESTIMONY   CONCERNING   SAMUEL   A.    MUDD. 


177 


at  the  door  all  the  time.  I  happened  to  be 
standing  at  the  door  when  Dr.  Mudd  passed 
and  the  gentleman  with  him,  and  when  he 
returned  alone. 

MRS.  BECKY  BRISCOE  (colored.) 
For  the  Prosecution.— May  19. 

I  live  at  Mr.  John  McPherson's,  about  a 
quarter  of  a  mile  from  Bryantown.  I  know 
Dr.  Samuel  Mudd.  On  Saturday,  the  day 
after  the  President  was  murdered,  about  3 
o'clock,  as  I  was  standing  in  the  kitchen- 
door,  I  saw  the  Doctor  riding  into  town  with 
a  strange  gentleman.  The  gentleman  went 
toward  the  bridge,  and  the  doctor  kept  on 
to  Bryantown,  and  this  gentleman  came  back 
again.  He  kept  on  down  the  road  to  the 
swamp,  when  I  saw  him  again.  He  staid  at 
the  swamp  till  the  Doctor  came  back,  in 
about  half  an  hour,  I  reckon.  The  bridge  is 
in  sight  of  the  town,  about  half  a  mile  off. 
I  went  to  town  a  very  little  while  after  the 
Doctor  came  back.  I  there  heard  of  the  mur 
der  of  the  President,  but  I  did  not  hear  until 
two  or  three  days  after  that  the  man  who 
killed  him  was  named  Booth. 

Cross-examined  by  MR.  STONE. 

The  swamp  is  on  the  other  side  of  the 
house,  just  below  the  barn.  Dr.  Mudd  and 
this  man  went  along  together,  and  the  latter 
stopped  at  the  bridge  and  c"ame  back  again, 
and  went  as  far  as  the  swamp.  I  was  down 
in  the  branch  getting  willows  for  Dr.  Mar 
shall,  but  not  in  the  same  branch  the  gen 
tleman  was  in,  but  I  could  see  over  into  that 
branch.  He  was  sitting  there  on  the  horse. 
I  saw  him  again  going  up  the  road  with  Dr. 
Samuel  Mudd.  I  think  both  of  them  were 
on  bay  horses.  They  passed  about  3  o'clock 
in  the  afternoon.  A  boy  who  was  cutting 
wood  at  the  wood-pile  said,  "There's  a 
strange  man  going  with  Dr.  Sam  ;  I  do  n't 
know  who  he  is." 

1  started  for  Bryantown  when  Dr.  Mudd 
came  back.  The  soldiers  were  in  Bryantown 
when  I  got  there.  I  told  my  mother,  who 
has  just  testified,  that  day  of  having  seen 
this  man  with  Dr.  Mudd,  and  the  next  day 
I  also  told  Baker  Johnson,  Mr.  Henry  John 
son,  and  Maria  Kirby  about  it 

MARCUS  P.  NORTON. 

For  the  Prosecution. — June  3. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

I  was  in  in  this  city,  stopping  at  the  Na 
tional  Hotel,  from  about  the  10th  of  January 
to  the  10th  of  March  last.  While  there  I 
knew  J.  Wilkes  Booth  by  sight,  having  seen 
him  act  several  times  at  the  theater. 

I  saw  the  accused,  Samuel  A.  Mudd,  under 
the  following  circumstances:  A  person  hast 
ily  entered  my  room,  on  the  morning  of  the 
3d  of  March,  I  think.  He  appeared  some 
what  excited,  made  an  apology,  and  said  that 
he  had  made  a  mistake;  that  he  wanted  to 
12 


see  Mr.  Booth.  I  told  him  tnat  Booth's 
room  was  probably  on  the  floor  above,  the 
number  I  did  not  know.  My  room  having 
thus  been  entered  by  a  person  apparently 
excited,  I  left  my  writing  and  followed  the 
person  partly  through  the  hall.  As  he  went 
down  the  flight  of  stairs  to  the  story  below, 
he  turned  and  gave  a  look  at  me.  It  was 
his  hasty  apology  and  hasty  departure  that 
made  me  follow  him.  On  entering  the  court 
room  this  morning,  I  pointed  out  to  the  Hon. 
Horatio  King  the  three  prisoners  I  had  seen 
at  the  National  Hotel — Dr.  Mudd,  Atzerodt, 
and  O'Laughlin.  When  I  pointed  them  out 
I  did  not  know  their  names. 

[  See  testimony  of  Marcus  P.  Norton,  page  149.] 

I  recognize  the  person,  Samuel  A.  Mudd, 
as  the  man  who  entered  my  room  on  that 
occasion.  It  was  either  he  or  a  man  exactly 
like  him.  I  am  enabled  to  fix  the  date  when 
he  entered  my  room,  first  by  the  fact  of  its 
being  immediately  before  the  inauguration, 
also  that  it  was  on  the  morning  of  the  day 
on  which  I  was  preparing  my  papers  to  argue 
a  motion,  pending  before  the  Supreme  Court, 
in  the  case  of  John  Stainthrop  and  Stephen 
C.  Quinn  against  Wallis  Hollister.  I  remem 
ber  the  motion  was  argued  on  the  day  the 
-person  I  speak  of  entered  my  room.  He 
had  on  a  black  coat.  His  hat,  which  he 
held  in  his  hand,  was,  I  think,  a  black  one, 
but  not  a  high-crowned  hat. 

Cross-examined  by  MR.  EWING. 

My  impression  is  that  it  was  after  I  heard 
the  conversation  between  Booth  and  Atze 
rodt  that  Dr.  Mudd  entered  my  room,  and  I 
have  no  doubt  it  was  on  the  3d  of  March. 
I  occupied  room  No.  77  in  the  National 
Hotel  at  the  time.  Dr.  Mudd  was  dressed  in 
black;  he  had  on  a  black  coat,  no  overcoat, 
I  think,  and  his  hat,  which  he  had  in  his 
hand,  was  black ;  I  think  it  was  a  hat  some 
thing  like  that,  [pointing  to  the  black  silk 
hat  of  the  President  on  the  table,]  but  not 
so  high. 

By  the  COURT. 

When  Dr.  Mudd  entered  my  room  he 
seemed  somewhat  excited,  or  perhaps  in  a 
hurry  rather.  He  said  he  had  made  a  mis 
take  in  the  room,  and  apologized  in  that 
way.  The  room  I  then  occupied  was  No. 
77.  I  had  perhaps  ten  days  before  been  re 
moved  from  room  No.  120. 

See  also  the  testimony  of 

Louis  J.  Weichrnann pages  113,  118 

Lieut  Alexander  Lovett page    87 

Lieutenant  D.  D.  Dana "      88. 

William  Williams "       88. 

Simon  Gavacan "       89. 

Joshua  Lloyd "       90. 

Thomas  L.  Gardiner "       71. 

Miss  Anna  E.  Surratt "     130. 

Miss  Honora  Fitzpatrick "     132. 


178 


THE    CONSPIRACY    TRIAL. 


DEFENSE  OF  SAMUEL  A.  MUDD, 


JOHN  C.  THOMPSON. 
For  the  Defense. — May  26. 
By  MR.  STONE 

I  reside  in  Charles  County,  Maryland.  I 
had  a  slight  acquaintance  with  a  man  named 
Booth ;  I  was  introduced  to  him  by  Dr. 
Queen,  my  father-in-law,  about  the  latter 
part  of  October  last,  or  perhaps  in  Novem 
ber.  He  was  brought  to  Dr.  Queen's  house 
by  his  son  Joseph.  None  of  the  family,  I 
believe,  had  ever  seen  or  heard  of  him 
before;  I  know  that  I  had  not.  He  brought 
a  letter  of  introduction  to  Dr.  Queen  from 
some  one  in  Montreal,  of  the  name  of  Mar 
tin,  I  think,  who  stated  that  this  man  Booth 
wanted  to  see  the  county.  Booth's  object 
in  visiting  the  county  was  to  purchase  lands; 
he  told  me  so  himself,  and  made  various 
inquiries  of  me  respecting  the  price  of  land 
there,  and  about  the  roads  in  Charles  County. 
I  told  him  that  land  varied  in  price  from  $5 
to  $50  per  acre;  poor  land  being  worth  only- 
about  $5,  while  land  with  improvements,  or 
on  a  river,  would  be  worth  $50 ;  but  I  could 
not  give  him  much  information  in  regard  to 
these  matters,  and  referred  him  to  Henry 
Mudd,  Dr.  Mudd's  father,  a  large  land-owner. 
He  also  inquired  of  me  if  there  were  any 
horses  for  sale  in  that  neighborhood.  I  told 
him  that  I  did  not  know  of  any,  for  the 
Government  had  been  purchasing,  and  many 
of  the  neighbors  had  been  taking  their 
horses  to  Washington  to  sell.  Booth  told 
me,  on  the  evening  of  his  arrival  at  Dr. 
Queen's,  that  he  had  made  some  specula 
tions  or  was  a  share-holder  in  some  oil  lands 
in  Pennsylvania;  and  as  well  as  I  remem 
ber,  he  told  me  that  he  had  made  a  good 
deal  of  money  out  of  it,  and  I  did  not  know 
but  that  he  came  down  there  for  the  purpose 
of  investing. 

On  the  next  morning,  Sunday,  I  accom 
panied  him  and  Dr.  Queen  to  Church  at 
Bryantown.  I  happened  to  see  Dr.  Samuel 
A.  Mudd  in  front  of  the  Church  before 
entering,  and  spoke  to  him,  and  introduced 
Mr.  Booth  to  him.  Mr.  Booth  staid  at  Dr. 
Queen's  that  night  and  the  next  day.  About 
the  middle  of  the  December  following,  if  my 
memory  serves  me,  Mr.  Booth  came  down  a 
second  time  to  Dr.  Queen's;  he  staid  one 
night  and  left  early  next  morning.  I  never 
saw  him  but  on  these  two  occasions,  and  do 
not  know  whither  he  went  when  he  left  Dr. 
Queen's. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  live  about  seven  or  eight  miles  from  Dr. 
Samuel  A.  Mudd.  I  know  the  Doctor  per 


sonally,  but  am  not  intimately  acquainted 
with  him,  or  with  his  affairs.  I  do  not  know 
that  Dr.  Mudd  owns  lands,  or  whether  he 
lives  upon  land  that  belongs  to  his  lather ; 
but  I  know  that  his  father  is  an  extensive 
land-holder,  and  I  told  Mr.  Booth  that  per 
haps  he  might  be  able  to  purchase  land 
from  him.  1  saw  the  signature  of  the  letter 
of  introduction  Booth  brought;  it  was  Mar 
tin,  I  believe;  the  first  name  I  forget.  Booth 
did  not  buy  any  lands  in  that  neighborhood, 
to  my  knowledge. 

DR.  WILLIAM  T.  BOWMAN. 

For  the  Defense. — May  27. 

By  MR.  EWING. 

I  reside  at  Bryantown,  Charles  County, 
Maryland.  Some  time  in  December  last  1 
met  J.  Wilkes  Booth  at  Church,  near  Bry 
antown.  I  was  told  it  was  Booth,  the  trage 
dian.  A  few  days  afterward  I  saw  him 
again  in  Bryantown.  After  speaking  to  one 
or  two  other  persons,  he  asked  me  if  I  knew 
any  person  who  had  any  land  to  sell.  I  told 
him  I  had  a  tract  which  I  should  like  to 
dispose  of,  and  took  him  to  the  window  and 
pointed  out  the  place  to  him.  I  told  him 
the  extent  and  price,  etc.  He  asked  me  if  I 
had  any  horses  to  sell.  I  told  him  I  had 
several  I  would  sell.  He  then  said,  "  I  will 
be  down  in  a  couple  of  weeks  and  look  at 
your  land." 

I  have  heard  Dr.  o^Iudd  say  he  would  like 
to  sell  his  land.  Last  summer,  when  he 
could  get  no  hands,  he  said  he  would  sell. 
I  asked  him  what  he  expected  to  do  in  case 
he  sold  his  land ;  he  said  he  thought  of 
going  into  business  in  Benedict,  on  the  Pa- 
tuxent  River;  it  is  in  an  easterly  direction 
from  Bryantown,  and  is  our  usual  port  for 
Charles  County. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Some  four  or  five  days  after  Booth  was 
there,  I  saw  Dr.  Mudd.  I  told  him  ]  thought 
I  should  now  sell  my  land.  He  asked  me  to 
whom  I  expected  to  sell.  I  told  him  there 
was  a  man  by  the  name  of  Booth,  who  said 
he  was  coming  down  to  look  at  it,  when  he 
said,  "  That  fellow  promised  to  buy  mine." 

By  MR.  STONE. 

The  distance  from  Bryantown  to  the  Pa- 
tuxent  is  ten  miles.  Matthias  Point  is  the 
nearest  crossing  on  the  Potomac  from  Bry 
antown,  and  that  is  from  fifteen  to  sixteen 
miles.  It  is  about  fifteen  miles  from  Bry 
antown  to  Pope's  Creek,  which  is  opposite 


DEFENSE    OF    SAMUEL    A.    MUDD. 


179 


Matthias  Point,  on  the  Potomac,  and  about 'obtained  from  Dr.  Mudd's  house  and  from 
three  miles  and  a  half  from  there  to  Dr.  |  mine;  most  of  it,  I  think,  from  Dr.  Mudd' a. 
Mudd's.  Mr.  Henry  L.  Mudd,  the  father  of  Our  meals  were  brought  us  by  Dr.  Mudd. 


Dr.    Samuel    Mudd,    owns    a    considerable 
amount  of  land  in  that  neighborhood. 

Cross-examined  6y  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  live  three  miles  and  a  half  from  Dr. 
Mudd.  Dr.  Mudd  is  understood  to  own  the 
land  he  lives  on,  as  other  people  own  their 
land,  but  I  do  not  know  of  my  own  know 
ledge  that  it  belongs  to  him. 

JEREMIAH  DYER. 
For  the  Defense. — May  27. 


I  have   been   living  in   Baltimore  for  two  to  place, 


years;  before  that  I  lived  from  my  childhood 
within  half  a  mile  of  Dr.  Samuel  Mudd.  I 
know  Sylvester  Eglent,  who  is  a  servant  of 
Dr.  Mudd's  father;  I  also  know  Frank  Egleni, 
Dick  Washington,  and  Luke  Washington.  I 
never  heard  any  conversation  in  which  Dr. 
Mudd  said  he  would  send  Sylvester  Eglent 
and  his  brother  Frank  Eglent  to  Richmond. 
Such  a  conversation  could  not  have  taken 
place  in  August,  as  I  left  that  country  on  the 
let  of  August  for  Baltimore,  where  I  re 
mained  until  October.  I  then  heard  that 
some  thirty  or  forty  of  the  hands  had  left, 
and  I  went  down  to  hire  other  hands  to  se 
cure  the  crop.  I  heard,  when  I  got  down 
there,  that  a  man  by  the  name  of  Turner 
had  started  a  report  that  he  was  going  to 
catch  all  the  negroes  in  that  neighborhood 
and  send  them  away.  I  never  heard  Dr. 
Mudd  say  any  thing  about  sending  off  his 
hands  to  Richmond.  I  never  met  Dr.  Mudd 
in  company  with  Walter  Bowie  at  his  father's 
house.  I  know  Milo  Simms,  Melvina  Wash 
ington,  Elzee  Eglent,  and  Mary  Simms;  they 
were  all,  I  think,  servants  of  Dr.  Mudd's 
house  in  1861. 

I  know  Andrew  Gwynn  very  well.  Since 
1861  he  has  been  in  the  rebel  army.  About 
he  1st  of  September,  1861,  I  was  in  the 
neighborhood  of  Dr.  Mudd's  house  for  about 
a  week.  We  were  knocking  about  in  the 
pines  and  around  there.  It  was  about  the 
time  Colonel  Dwight's  regiment  was  passing 
through,  and  there  was  a  perfect  panic  in 
the  neighborhood;  the  report  was  that  every 
body  was  to  be  arrested.  A  great  many  were 
arrested.  Mr.  Gwynn  and  his  brother  came 
down  in  a  fright,  stating  that  they  had  been 
in  the  house  to  arrest  them,  or  had  been  in 
formed  they  were  on  their  way  there.  I  also 
received  notice  that  I  was  to  be  arrested. 
The  two  Gwynns  came  down  then;  I  met 
them  there  at  Dr.  Mudd's  or  my  house,  I  do 
not  know  which;  the  farms  are  adjoining 
For  several  nights  we  slept  in  the  pines  be 
tween  his  house  and  mine.  That  situation 
was  a  little  inconvenient,  and  we  moved  over 
and  lay,  I  think,  one  or  two  nights  near  his 
spring.  We  had  some  bed-clothing  there, 


The  Doctor  used  to  bring  down  a  basket  con 
taining  bread,  meat,  biscuit,  and  ham,  and  the 
colored  girl,  Mary  Simms,  I  think,  brought 
a  pot  of  coffee. 

There  is  a  large  swamp  between  his  house 
and  mine.  The  first  night  we  were  on  the 
other  side  of  the  swamp,  after  that  we  came 
within  one  hundred  and  fifty  or  two  hun 
dred  yards  of  Mudd's  house.  The  party  con 
sisted'  of  Benjamin  Gwynn,  Andrew  Gwynn, 
and  myself.  There  was  at  the  time  a 
general  stampede  and  panic  in  the  com 
munity.  A  good  many  left  their  homes,  and 
went  to  their  friends'  houses,  or  from  place 


When  we  were  in  the  pines,  I  think  Mr. 
Gwynn's  horses  were  left  at  Dr.  Mudd's,  and 
were  fed  by  the  boys  there;  Milo  Simms 
would  be  likely  to  attend  to  them.  I  re 
member  telling  the  children  to  keep  a  look 
out,  and  if  any  one  came  to  let  me  know. 
We  were  all  dressed  in  citizen's  clothes. 

Alvin  Brook,  William  Mudd,  Vinceot 
Mudd,  and  Albert  Mudd  might  have  come 
there  while  we  were  there,  but  I  do  not  dis 
tinctly  remember. 

I  have  known  Daniel  J.  Thomas  since  he 
was  a  boy,  and  I  know  his  reputation  for 
veracity  in  that  neighborhood  is  such  that 
very  few  men  there  have  any  confidence  in 
him.  His  reputation  is  so  bad  that  I  would 
not  believe  him  under  oath. 

1  have  known  Dr.  Mudd  since  he  was  a 
boy.  I  have  never  heard  the  slightest  thing 
against  him.  He  has  always  been  regarded 
as  a  good  citizen;  he  has  a  good  reputation 
for  peace,  order,  and  good  citizenship.  I  have 
always  considered  him  a  kind  and  humane 
master.  I  never  knew  of  any  thing  to  the 
contrary,  except  his  shooting  his  servant, 
which  he  told  me  of  the  same  day  it  happened. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  have  never  heard  Thomas  charged  with 
having  sworn  falsely.  He  is  a  noisy,  talk 
ative  man,  but  is  unquestionably  loyal.  I 
can  not  say  that  1  have  ever  heard  a  man 
of  known  loyalty  speak  of  Mr.  Thomas  a<» 
a  man  they  would  not  believe  under  oath. 

I  am  not  aware  that  1  have  been  guilty  of 
any  disloyalty  toward  the  Government;  J 
certainly  never  wanted  to  see  two  Govern 
ments  here,  and  I  think  I  have  desired  that 
the  Government  of  the  United  States  might 
succeed  in  its  endeavors  to  suppress  the  re 
bellion,  and  I  have  persuaded  young  men 
from  going  on  the  other  side. 

I  was  a  member  of  a  military  organiza 
tion  in  1861,  the  object  of  which  was,  I  be 
lieve,  to  stand  by  the  State  of  Maryland  in 
the  event  of  its  taking  ground  against  the 
Government  of  the  United  States. 

Q.  At  the  time  of  which  you  speak,  the 
fall  of  1861,  was  the  subject  of  the  Legia- 


180 


TUE    CONSPIRACY   TRIAL. 


lature  of  Maryland  passing  an  ordinance  of 
secession  much  discussed  among  you  ? 

A.  I  do  not  know;  I  probably  heard  the 
subject  spoken  of  very  often,  but  I  do  not 
know  that  it  was  discussed  to  any  extent.  I 
may  have  heard  it  spoken  of  in  crowds  or 
congregations,  but  so  far  as  conversing  with 
any  particular  person  on  that  subject  is  con 
cerned,  I  have  no  knowledge  of  it. 

Q.  Did  you  not  suppose  that  the  organi 
zation  of  which  you  were  a  member  was  at 
that  time  regarded  as  disloyal  by  the  Govern 
ment,  arid  hence  feared  arrest? 

A.  I  hardly  know  how  to  answer  that 
question.  That  was  in  the  incipiency  of  the 
thing,  and  it  was  hardly  time  for  men  to  re 
flect  and  give  their  minds  room  to  see  what 
would  be  the  result  of  rebellion  and  civil 
war;  it  was  in  the  start,  when  every  thing 
was  wild  excitement  and  enthusiasm;  and  of 
course  I  can  hardly  answer  that  question. 

I  do  not  know  that  I  particularly  rejoiced 
at  the  success  of  the  rebels  at  the  first  battle 
of  Bull  Run.  I  might  have  been  like  a  good 
many  others  at  that  time;  I  suppose  my 
sympathies  were  with  the  rebels.  When 
Richmond  was  taken,  my  sympathies  were 
on  the  side  of  the  Government;  I  wanted 
to  see  the  war  stopped.  I  believe  the  United 
States  were  pursuing  the  right  course,  except 
in  emancipating  the  slaves;  I  thought  that 
was  wrong. 

By  MR.  EWING. 

I  have  not  seen  a  great  deal  of  Mr.  Thomas 
for  the  past  two  or  three  years;  my  estimate 
of  his  reputation  for  truth  and  veracity  is 
based  upon  my  knowledge  of  that  reputation 
for  several  years  back.  I  know  he  has  not 
borne  a  good  reputation  for  truth  and  veracity 
in  that  neighborhood  since  he  was  a  boy.  I 
1  have  heard  him  spoken  of  as  one  who 
would  tattle  a  great  deal,  and  tell  stories,  and 
say  a  great  many  things  that  were  not  true. 

The  military  company  of  which  I  have 
spoken  was  organized,  I  think,  in  1859,  un 
der  the  authority  of  Governor  Hicks.  On 
the  22d  of  February,  1860,  we  were  up  here 
in  Washington,  at  the  inauguration  of  the 
statue. 

By  the  COURT. 

Our  company  broke  up  immediately  on  the 
breaking  out  of  the  war,  and  a  great  many 
left  and  joined  the  rebel  army.  I  think  it 
was  regarded  by  the  Government  as  a  disloyal 
organization  at  the  breaking  out  of  the  war. 

Mr.  Thomas  was,  I  think,  a  candidate  for 
a  seat  in  the  House  of  Delegates  of  Mary 
land  a  year  or  two  ago. 

By  MR.  EWING. 

I  do  not  think  Thomas  was  nominated ;  I 
saw  his  name  in  the  newspaper,  and  I  saw 
him  at  the  polls  on  the  day  of  the  election; 
.ie  was  then  very  confident  of  his  election. 

The  military  organization  to  which  I  be 


longed  was  not  regarded  as  a  disloyal  organ 
ization  in  1859;  we  never  drilled  after  the 
breaking  out  of  the  war. 

Recalled  for  the  Defense. — May  11. 

I  know  John  H.  Surratt;  I  have  seen  him 
on  his  father's  place,  at  Surrattsville.  This 
photograph  of  him  [the  one  in  evidence]  is, 
I  think,  a  good  likeness.  I  have  not  seen 
him  for  a  year  and  a  half  or  two  years. 

By  MR.  STONE. 

Dr.  Mudd  does  not  live  on  any  of  the 
direct  roads  leading  from  Washington  to  the 
Potomac.  A  person  leaving  Washington,  in 
tending  to  strike  the  Potomac  above  Pope's 
Creek  or  Upper  Cedar  Point  Neck,  would  go 
out  of  his  way  seven  or  eight  miles  to  pass 
Dr.  Mudd's.  A  person  starting  from  here  to 
strike  the  Potomac  at  Port  Tobacco,  would 
be  nearest  Dr.  Mudd's  at  Troy,  where  the 
main  road  crosses.  That  is  seven  or  eight 
miles  from  Dr.  Mudd's  place;  so  that  a  per 
son  would  go  out  of  his  way  sixteen  miles  to 
call  at  Dr.  Mudd's,  and  by  the  nearest  road 
it  would  be  ten  or  twelve  miles.  Dr.  Mudd's 
house  is  considerably  nearer  the  Patuxent 
than  the  Potomac.  All  the  shipping  from 
his  farm  is  done  on  the  Patuxent.  I  think 
Pope's  Creek  on  this  side  of  the  Potomac  is 
nearly  opposite  Matthias  Point,  in  Virginia. 

Recalled  for  the  Defense. — June  30. 
Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

In  September,  1861,  I  accompanied  Benja 
min  Gwynn  and  Andrew  Gwynn  to  Virginia. 
I  think  we  remained  in  Richmond  four  weeks ; 
I  was  sick  there  for  two  weeks.  Wre  sup 
posed  we  were  to  be  arrested,  and  we  went  to 
Richmond  to  avoid  it.  We  were  in  the  pines 
at  Dr.  Mudd's  four  or  five  days  before  we  left. 
I  belonged  to  a  cavalry  company,  but  I  can 
not  say  that  it  was  hostile  to  the  Govern 
ment  and  Administration  of  the  United 
States.  I  suppose,  if  Maryland  had  passed 
the  ordinance  of  secession,  in  all  probability 
that  company  would  have  been  in  the  rebel 
army,  but  I  can  not  say  that  it  was  an  organ 
ization  to  support  Maryland  in  so  doing.  I 
am  not  aware  that  I  publicly  proclaimed 
myself  in  favor  of  the  secession  of  Mary 
land;  I  may  have  done  so,  but  I  do  not  now 
recollect.  I  have  not  been  over  the  lines 
since  the  time  I  have  referred  to. 

I  have  been  at  Dr.  Mudd's  several  times 
during  the  past  two  or  three  years.  In  going 
backward  and  forward  from  Baltimore,  I  gen 
erally  make  Dr.  Mudd's  my  head-quarters. 

By  MR.  EWING. 

I  am  brother-in-law  to  Dr.  Mudd.  I  have 
two  or  three  sisters  in  that  neighborhood, 
and  I  go  to  see  them  all.  When  I  returned 
from  Virginia  I  took  the  oath  of  allegiance, 
and  I  have  never,  to  my  knowledge,  vio 
lated  it. 


DEFENSE    OF   SAMUEL   A.   MUDD. 


181 


ALVIN  J.  BROOK. 

For  the  Defense. — May  27. 
By  MR.  EWIXG. 

I  have  been  living  at  Calvert  College,  near 
Windsor,  Maryland,  since  September  last; 
before  that  I  worked  for  Dr.  Samuel  Mudd. 
I  went  there  in  January,  1864.  While  living 
at  Dr.  Mudd's  I  never  saw  Captain  or  Lieu 
tenant  Perry,  or  Captain  White,  from  Ten 
nessee.  I  know  Mr.  Benjamin  Gwynn  and 
Andrew  Gwynn,  but  I  did  not  see  either  of 
them  at  Dr.  Mudd's.  I  know  John  H.  Sur- 
ratt;  I  saw  him  in  Prince  George's  County 
last  August.  While  at  Dr.  Mudd's  I  never 
saw  nor  have  I  any  knowledge  of  those  per 
sons  sleeping  in  the  woods  at  Dr.  Mudd's; 
I  never  saw  any  evidence  that  they  did.  I 
was  in  the  stable  morning,  noon,  and  night, 
but  I  never  saw  any  strange  horses  there. 
While  living  at  Dr.  Mudd's,  I  took  my  meals 
and  slept  in  the  house. 

In  1861  I  was  living  at  Jerry  Dyer's,  which 
is  just  across  the  swamp  from  Dr.  Mudd's 
place.  I  know  of  persons  sleeping  in  the 
woods  in  1861,  the  first  year  of  the  war.  I 
know  of  Jerry  Dyer  and  Benjamin  Gwynn 
dodging  about  there  in  the  woods.  I  have 
not  seen  Andrew  Gwynn  since  then. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

[  Photograph  of  John  H.  Surratt  exhibited  to  the  wit 
ness.] 

I  know  that  picture-.  It  is  John  H.  Sur 
ratt.  I  saw  him  about  the  middle  of  August 
last,  about  sixteen  miles  from  Dr.  Mudd's. 
No  one  was  at  Dr.  Mudd's  while  I  was  there, 
but  the  neighbors  round,  William  A.  Mudd, 
Albert  Mudd,  and  Constantine  Mudd.  I 
knew  all  who  came  there;  there  were  no 
strangers.  I  never  saw  Booth. 

FRANK  WASHINGTON  (colored.) 

For  the  Defense. — May  27. 

By  MR.  STONE. 

1  lived  the  whole  of  last  year  at  Dr.  Samuel 
Mudd's.  I  was  his  plowman ;  I  am  working 
there  still.  I  was  there  every  day,  except 
Sundays  and  holidays,  and  I  was  in  the 
stable  night  and  morning,  and  at  12  o'clock. 
I  was  often  at  the  spring.  I  took  my  meals 
in  the  kitchen  of  Dr.  Mudd's  house. 

I  know  Mr.  Andrew  Gwynn  and  Mr.  Benja 
min  Gwynn  by  sight.  It  has  been  four  years 
since  I  saw  Mr.  Andrew  Gwynn.  I  never 
naw  any  one  camped  out  in  the  woods  at  Dr. 
Mudd's.  I  never  saw  any  one  there  called 
Captain  Perry  or  Lieutenant  Perry,  or  Captain 
White,  and  I  have  never  seen  any  strange 
horses  in  the  stable.  I  know  Mary  Simms. 

Q,  What  do  the  servants  there  in  the 
neighborhood  think  of  her  character  for  tell 
ing  the  truth? 

A.  She  was  never  known  to  tell  the  truth. 


Q.  From  her  general  character  among  the 
servants  in  the  neighborhood  for  telling  the 
truth,  would  you  believe  her  on  oath  ? 

A.  No,  sir. 

Q.  How  did  Dr.  Mudd  treat  his  servants  ? 

A.  He  treated  them  pretty  well. 

Q.  How  did  he  treat  you  ? 

A.  He  treated  me  first-rate.     I  had  no  fault 
to  find  with  him. 
[Exhibiting  a  photograph  of  John  H.  Surratt.] 

I  do  not  know  him;  I  never  saw  him. 
Cross-examined  by  the  JUDGE  ADVOCATE. 

I  have  known  Mary  Simms  ever  since  she 
was  a  small  girl.  Others  on  the  place  think 
of  Mary  Simms  as  I  do.  I  was  not  on  the 
place  when  Dr.  Mudd  shot  one  of  his  serv 
ants.  I  knew  him,  but  have  not  seen  him 
since  the  second  year  of  the  war. 

[The  witness  was  directed  to  look  at  the- accused,  David 
E.  Herold.] 

I  never  saw  him.  I  do  not  know  any  of 
the  prisoners,  excepting  Dr.  Samuel  Mudd. 

I  was  home  on  Saturday,  the  day  the 
President  was  killed,  when  two  men  called 
at  Dr.  Mudd's.  I  took  their  horses.  I  got  a 
glimpse  of  one  of  them  as  he  was  standing 
in  the  door,  just  as  the  day  was  breaking. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

Two  stray  horses  came  there  the  day  after 
the  assassination;  I  put  them  in  the  stable, 
and  fed  them.  One  was  a  bay,  and  the  other 
was  a  large  roan.  They  came  there  just 
about  daybreak.  At  noon  the  bay  was  gone, 
and  Dr.  Mudd's  gray  one.  I  led  them  out. 

Q.  Did  the  little  man  on  the  end  of  the 
seat  there  [Herold]  ride  the  bay  one,  or  the 
Doctor  ? 

A.  I  do  not  know;  I  never  saw  him  on  a 
horse. 

Q.  You  know  you  took  out  the  bay  one 
and  Dr.  Mudd's  gray? 

A.  Yes,  sir. 

I  do  not  know  where  they  went.  When 
I  brought  out  the  horses,  I  went  to  the  field, 
and  did  not  come  back  till  sundown,  and 
both  horses,  the  bay  and  the  roan,  were  then 
gone.  Dr.  Mudd  has  only  two  servants  now, 
myself  and  Baptist  Washington,  who  is  a 
carpenter. 

I  get  $130  a  year  wages.  I  do  not  know 
that  1  shall  get  any  thing  for  this  extra  job. 
No  one  has  promised  me  any  thing  for 
coming  here,  or  said  any  thing  about  it.  I 
do  not  know  about  any  arms  being  brought 
to  Dr.  Mudd's  at  any  time,  nor  was  any  thing 
said  that  I  know  about  Rachel  Spencer  bury 
ing  any  arms  for  Dr.  Mudd. 

BAPTIST  WASHINGTON  (colored.) 

For  the  Defense. — May  27. 

By  MR.  STONE. 

I  worked  for  Dr.  Samuel  Mudd  last  year. 
I  put  up  a  room  between  his  house  and  the 


182 


THE  CONSPIRACY   TRIAL. 


kitchen.  I  worked  there  from  either  Janu 
ary  or  February  until  August,  and  then  came 
to  Washington,  and  staid  here  about  a  month, 
when  I  went  back  to  Dr.  Mudd  and  staid 
there  until  Christmas.  I  never  heard  of 
anybody  being  camped  about  the  spring,  or 
sleeping  in  the  woods  at  Dr.  Mudd's  last 
year.  I  used  to  be  down  at  the  spring  pretty 
often,  but  I  did  not  see  anybody  there.  I 
do  not  know  Captain  Ben.  Gwynn  or  An 
drew  Gwynn,  and  1  never  saw  or  heard  of 
Captain  White  or  Captain  Perry  being  at 
Dr.  Mudd's;  nor  did  I  ever  know  of  any 
horses  belonging  to  strangers  being  in  the 
stable.  I  did  most  of  my  work,  sawing-out 
and  framing,  at  the  stable.  I  was  at  the 
stable  every  day  while  I  was  at  work,  except 
ing  Sundays  and  holidays. 

I  know  Mary  Simms,  the  colored  girl,  that 
lived  at  Dr.  Mudd's.  Nobody  that  knew  her 
put  much  confidence  in  her.  Mary  Simms 
minded  the  children,  and  waited  on  the  table 
sometimes. 

Q.  How  did  Dr.  Mudd  treat  his  servants? 

A.  He  always  treated  his  servants  very 
well,  so  far  as  I  knew. 

Q.  How  did  he  treat  you? 

A.  He  treated  me  very  well.  I  was  always 
very  well  satisfied  with  the  accommodations 
he  gave  me  when  I  was  there. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  did  not  belong  to  Dr.  Mudd,  but  was  hired 
out  to  him.  I  was  the  slave  of  Mrs.  Lydia 
Dyer,  originally  of  the  family  of  Jerry  Dyer. 

[Exhibiting  to  the  witness  a  photograph  of  John  H.  Sur- 
ratt.J 

I  do  not  know  that  man ;  I  never  saw  him 
at  Dr.  Mudd's  that  I  know. 

MRS.  MARY  JANE  SIMMS. 
For  the  Defense. — May  27. 

I  lived  with  Dr.  Samuel  Mudd  during  the 
year  1864,  except  when  I  was  at  my  sister's 
visiting.  I  never  staid  over  two  or  three 
weeks  at  my  sisters. 

I  know  Captain  Bennett  Gwynn  and  Mr. 
Andrew  Gwynn.  Mr.  John  H.  Surratt  I 
have  seen  since.  I  saw  none  of  those  per 
sons  at  Dr.  Mudd's  last  year;  none  of  them 
were  in  the  woods  and  fed  from  the  house 
that  I  saw  or  heard  of.  I  visited  my  sister 
last  March  twelve  months,  and  was  at  Dr. 
Mudd's  pretty  much  all  the  spring,  summer, 
and  fall. 

BENNETT  F.  GWYNN. 

For  the  Defense.— May  20. 

By  MR.  EWING. 

My  name  is  Bennett  F.  Gwynn.  I  am 
sometimes  called  Ben.  Gwynn.  Andrew  and 
George  Gwynn  are  my  brothers.  Of  Captain 
WThite  from  Tennessee,  Captain  Perry,  or 
Lieutenant  Perry,  I  know  nothing.  I  never 
heard  of  such  persons. 


About  the  latter  part  of  August,  1861,  I 
was  with  my  brother,  Andrew  J.  Gwynn, 
Mr.  Jerry  Dyer,  and  Alvin  Brook,  at  Dr. 
Mudd's  place.  About  that  time  General 
Sickles  came  over  into  Maryland,  arresting 
almost  everybody.  I  was  told  I  was  to  be 
arrested,  and  I  went  out  of  the  neighborhood 
awhile  to  avoid  it.  I  went  down  into  Charles 
County;  staid  about  among  friends  there  for 
a  week  or  so,  as  almost  everybody  else  waa 
doing.  There  was  a  good  deal  of  running 
about  that  time. 

Q.  Go  on  and  tell  all  about  it. 

Assistant  Judge  Advocate  BINGHAM  ob 
jected.  What  occurred  in  1861  was  not  in 
issue. 

Mr.  EWING  said  that  the  prosecution  had 
called  four  or  five  witnesses  to  prove  that 
several  persons,  among  whom  was  the  wit 
ness  now  on  the  stand,  had  been  concealed 
in  the  neighborhood  of  Dr.  Mudd's  house  for 
a  week,  and  that  their  meals  were  brought 
to  them  by  him  or  his  servants,  and  had 
attempted  to  show  that  those  persons  were  in 
the  Confederate  service,  and  that  Dr.  Mudd 
was  guilty  of  treason  in  assisting  them  to 
secrete  themselves,  and  had  stated  that  that 
occurrence  took  place  last  year  or  the  year 
before.  To  prove  by  this  witness  and  others 
that  no  such  thing  occurred  last  year  or  the 
year  before,  might  not  be  regarded  as  a 
complete  answer  to  the  allegation,  and  hence 
it  was  proposed  now  to  show  that  the  trans 
action  referred  to  took  place  in  1861,  at  the 
beginning  of  the  war,  at  a  time  of  general 
terror  in  the  community,  and  that  some  of 
the  persons,  alleged  to  have  been  concealed 
there,  were  not  there.  To  withhold  from  the 
accused  the  right  to  prove  this  would  be 
denying  to  him  a  most  legitimate  line  of 
defense. 

Assistant  Judge  Advocate  BINGHAM  replied, 
that  the  Government  had  introduced  no  tes 
timony  in  regard  to  any  such  transaction  in 
1861 ;  and  hence  the  testimony  now  pro 
posed  to  be  introduced  was  irrelevant  and 
immaterial.  If  the  witness  should  swear 
falsely  as  to  that,  it  would  not  be  legal 
perjury,  because  it  was  a  matter  not  in  is 
sue.  The  witness  could  be  inquired  of  as  to 
the  time  when  it  was  stated  he  had  been 
there,  but  not  as  to  what  occurred  in  1861. 

The  Commission  sustained  «*the  objection. 

Q.  Where  did  you  and  the  party  who  were 
with  you  near  Dr.  Mudd's,  sleep? 

A.  We  slept  in  the  pines  near  the  spring. 
We  had  some  counterpanes  which  were  fur 
nished  by  Dr.  Mudd,  who  brought  our  meals. 
We  were  there  in  the  pines  four  or  five  days. 
While  we  were  there  we  often  went  to  Dr. 
Mudd's  house ;  almost  every  day,  I  think. 
Our  horses,  though  I  do  not  know  positively, 
were,  I  suppose,  attended  to  by  Dr.  Mudd's 
servant.  I  have  not  been  in  Dr.  Mudd's 
house  or  near  his  place  since  about  the  6th 
of  November,  1861. 

Some  time   from  the  5th    to   the  10th  of 


DEFENSE   OF   SAMUEL   A.  MUDD. 


November,  1861,  I  camt  up  to  Washington 
to  give  myself  up,  as  I  was  tired  of  being 
away  from  home.  When  I  came  here,  they 
eaid  there  were  no  charges  filed  against  me; 
BO  I  took  the  oath  and  went  home. 

My  brother,  Andrew  Gwynn,  has  been 
South,  I  understand,  since  August,  1861.  He 
resided  some  eight  or  ten  miles  from  my 
place.  He  returned  once,  I  understood,  last 
winter,  but  1  did  not  see  him,  and  did  not 
know  it.  I  have  been  living  in  Prince 
George's  County  since  1861. 

I  know  John  H.  Surratt.  At  the  time  we 
were  in  the  pines,  he  was,  I  believe,  at  St. 
Charles  College. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

The  parties  who  were  arrested  in  1861 
Vere  mostly  members  of  volunteer  military 
</«ompanies,  commissioned  by  Governor  Hicks. 
I  was  captain  of  a  cavalry  company  down 
there.  It  was  called  the  Home  Guard,  and 
was  for  the  purpose  of  protection  in  the 
neighborhood  There  was  at  that  time  a 
great  deal  of  dissatisfaction  among  the  blacks, 
and  those  in  the  neighborhood  thought  it 
wbuld  be  a  good  plan  to  organize,  and  com 
panies  were  organized  all  through  the  coun 
ties.  I  petitioned  Governor  Hicks,  and  he 
gave  me  a  commission. 

Q.  Was  it  not  understood  that  these  were 
State  organizations,  and  intended  to  stand  by 
the  State  in  any  disloyal  position  it  might 
take  against  the  Government? 

A.  That  was  my  impression  of  them. 

Q.  And  you  were  a  captain  of  one  of  those 
companies? 

A.  Yes,  sir. 

Q.  You  felt,  therefore,  that  it  was  likely 
vou  would  be  arrested  ? 

A.  I  do  not  know  that  I  did  from  that. 
Some  of  the  members  of  my  company  were 
arrested,  and  I  understood  there  was  an 
order  for  my  arrest,  and  I  left. 

Q.  You  slept  there  in  the  pines  for  the 
sole  purpose  of  escaping  that  arrest? 

A.  Yes,  sir.  Dr.  Mudd  knew  why  we  were 
hiding  in  the  pines,  and  why  he  was  feeding 
us  there. 

By  MR.  EWING. 

The  company  of  which  I  was  captain  was 
organized  in  Prince  George's  County,  I  think, 
in  the  winter  of  1860.  I  think  we  com 
menced  getting  it  up  before  the  election  of 
Mr.  Lincoln.  Dr.  Mudd  was,  I  think,  a 
member  of  a  company  organized  in  Bryan- 
town,  but  I  do  not  know  it  of  my  own 
knowledge. 

WILLIAM  A.  MUDD. 

For  the  Defense. — May  30. 
By  MR.  EWING. 

I  live  about  a  mile  and  a  quarter  or  a 
srile  and  a  half  from  Dr.  Samuel  Mudd.  I 
mever  saw  any  person  by  the  name  of  Cap 


tain  White,  or  a  Capt&iu  or  Lieutenant  Perry, 
about  Dr.  Mudd's  premises.  I  did  not  see 
Mr.  Andrew  Gwynn  about  his  premises  last 
year;  I  have  not  seen  him  since  he  left  for 
the  South.  I  never  saw  any  person  staying 
out  in  the  woods,  at  Dr.  Samuel  Mudd's,  any 
time  last  year.  I  remember  seeing  Mr.  Ben 
nett  Gwynn  on  his  horse,  talking  with  the 
Doctor.  T  understood  Mr.  Gwynn  had  been 
scouting.  That  was  in  the  fall  of  the  first 
year  of  the  war. 

CHARLES  BLOYCE  (colored.) 

For  the  Defense. — June  3. 

By  MR.  EWING. 

I  know  the  prisoner,  Dr.  Samuel  A.  Mudd; 
I  was  about  his  house  Saturday  nights,  and 
some  parts  of  Saturday  and  Sunday,  all  last 
year,  except  from  the  10th  of  April  to  the 
20th  of  May,  when  I  went  out  to  haul  seine. 
I  commenced  going  to  Dr.  Mudd's  on  the 
12th  day  after  Christmas,  the  same  day  that 
Julia  Ann  Bloyce,  my  wife,  went,  and  was 
there  every  Saturday  night  and  all  day  Sun 
day,  except  when  1  went  to  Church.  I 
did  not  see  Ben.  or  Andrew  Gwynn  at  Dr. 
Mudd's  when  the  war  commenced,  about  four 
years  ago;  I  saw  them  passing  along  by  Mr. 
Dyer's.  I  neither  saw  nor  heard  any  thing 
of  Watt  Bowie,  John  H.  Surratt,  Captain 
White  of  Tennessee,  Captain  Perry,  Lieu 
tenant  Perry,  or  Booth  at  Dr.  Mudd's  while  I 
was  there;  and  I  do  not  know  of  any  rebel 
officers  or  soldiers  being  there.  I  never  saw 
anybody  at  his  house  dressed  in  any  kind  of 
uniform. 

The  colored  folks  there  always  laughed  at 
Mary  Simms;  they  said  she  told  such  lies 
they  could  not  believe  her.  They  said  the 
same  of  Milo  Simms.  I  thought  he  was  a 
liar,  for  he  used  to  tell  me  lies  sometimes.  I 
call  Dr.  Samuel  Mudd  a  first-rate  man  to  hia 
servants;  I  never  saw  him  whip  any  of  them, 
nor  heard  of  his  whipping  them.  They  did 
pretty  much  as  they  pleased,  as  far  as  I  saw. 
I  never  heard  a  word  of  his  sending  or  threat 
ening  to  send  any  of  his  servants  to  Rich 
mond. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

B  INCH  AM. 

Q.  Did  you  ever  hear  any  thing  about  his 
shooting  any  of  his  servants  ? 
A.  I  did  hear  that. 

Q.  Do  you  think  that  is  first-rate  business? 
A.  I  do  not  know  about  that. 


IMPEACHMENT  OF  D AN'L  J.  THOMAS. 

JOHN  H.  DOWNING. 

For  the  Defense. — May  29. 

By  MR.  EWING. 

I   live  near  Mount   Pleasant,    in    Charles 
/ounty,    Md.     I    am    very   well    acquainted 


184 


THE    CONSPIRACY    TRIAL. 


with  the  accused,  Samuel  A.  Mudd,  and  also 
with  Daniel  J.  Thomas,  both  of  whom  were 
raised  right  by  me. 

Some  time  this  spring,  between  the  1st  and 
the  15th  of  March,  I  think,  Daniel  Thomas 
was  at  my  house,  and  while  there  Dr.  Mudd 
came  in,  and  staid  about  half  an  hour.  Dr. 
Mudd  did  not,  in  conversation  at  that  time,  say 
that  Abraham  Lincoln  was  an  abolitionist,  and 
that  the  whole  Cabinet  were  such,  or  that  he 
thought  the  South  would  never  be  subjugated 
under  abolition  doctrines,  or  that  the  Presi 
dent,  and  all  the  Cabinet,  and  every  Union 
man  in  the  State  of  Maryland  would  be  killed 
in  six  or  seven  weeks.  No  such  words  were 
spoken  in  the  house  to  my  knowledge,  and  I 
staid  there  all  the  time.  After  I  had  been 
sitting  there  half  an  hour,  I  got  up  and 
walked  to  the  piazza,  and  Dr.  Mudd  followed 
me  immediately,  and  told  me  his  business; 
that  he  had  come  to  collect  a  little  doctor's 
bill,  and  then  went  directly  home. 

Dr.  Mudd  and  Thomas  could  have  had  no 
conversation  at  that  time  but  what  I  heard; 
I  was  close  to  them,  Thomas  sitting  between 
me  and  Dr.  Mudd,  and  if  they  had  whispered 
I  should  have  heard  it.  The  President's 
name  was  not  mentioned  during  Dr.  Mudd's 
stay,  and  I  do  not  recollect  that  Thomas 
mentioned  it  while  he  was  at  rny  house,  and 
he  had  been  there  two  or  three  hours  before 
Dr.  Mudd  came,  and  remained  fully  an  hour 
after  he  left.  Nor  was  any  reference  made  to 
any  member  of  the  Cabinet,  nor  to  killing 
anybody;  I  am  sure  I  should  have  remem 
bered  it  if  a  word  of  the  kind  had  been  men 
tioned.  Daniel  Thomas  and  I  meet  each 
other  very  frequently,  but  I  never  heard  him 
mention  a  word  of  the  kind  to  me  any  time, 
neither  before  the  assassination  nor  since. 

I  do  not  recollect  Dr.  Mudd's  saying  to  me 
on  that  occasion  that  he  did  not  consider  the 
oath  of  allegiance  worth  a  chew  of  tobacco ; 
to  my  knowledge  nothing  of  the  kind  was 
said.  I  can  not  recollect  all  the  conversa 
tion;  but  they  commenced  talking  about  de 
tectives,  and  Daniel  Thomas  told  Dr.  Mudd 
that  he  was  appointed  detective,  and  spoke 
of  several  others — Jerry  Mudd,  Dr.  George 
Mudd,  Joe  Padgett,  I  think,  and  perhaps  one 
of  the  Hawkinses,  who  were  also  detectives  ; 
but  he  said  he  would  never  catch  anybody; 
that  he  would  go  to  their  houses  because  it 
was  his  duty,  but  he  would  never  catch  any 
body  ;  that  he  was  not  bound  to  catch  them. 

Gross-examined  ly  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Dr.  Mudd  and  Thomas  were  talking  all 
that  half  hour;  their  talk  was  pretty  much 
about  detectives;  that  is  all  I  recollect  of  it. 
I  believe  it  took  Thomas  pretty  much  a  whole 
half  hour  to  say  that  he  was  a  detective,  and 
did  not  catch  anybody;  he  was  telling  a 
whole  parcel  of  foolish  things.  I  had  no 
conversation,  none  at  all;  Dr.  Mudd  and 
Thomas  only  were  talking.  I  believe  Dr. 


Mudd  compared  Thomas  to  a  jack,  because 
he  said  be  was  appointed  a  Deputy  Provost 
Marshal  under  Colonel  Miller;  and  said,  '' I 
think,  Daniel,  I  am  much  better  educated  than 
you  are,  and  I  do  not  think  I  am  capable 
of  filling  that  office  myself,  and  I  do  not 
think  you  are."  I  was  irritated  when  he 
called  Thomas  a  jack,  as  it  was  in  my  house; 
I  then  got  up,  and  Dr.  Mudd  followed  me  to 
the  door;  he  was  not  half  a  second  behind 
me.  If  Mudd  called  Thomas  an  abolitionist 
as  well  as  a  jack,  I  did  not  hear  it,  When 
Mudd  called  Thomas  a  jack,  he  might  have 
been  mad  at  the  idea  of  his  being  a  Deputy 
Provost  Marshal. 

By  MR.  EWING. 

It  was  cold  weather  at  the  time,  and  we 
sat  close  by  the  fire,  Thomas  between  me 
and  Mudd,  and  I  heard  every  word  of  the 
conversation  that  took  place. 

DR.  JOHN  C.  THOMAS. 

For  the  Defense. — May  26. 

By  MR.  STONE. 

I  reside  in  Woodville,  Prince  George's 
County,  Md.,  and  have  been  a  practicing 
physician  for  nineteen  years.  I  am  a  brother 
of  Daniel  Thomas,  who  has  testified  here. 

On  the  Sunday  morning  after  Dr.  Mudd's 
arrest,  my  brother  came  to  Woodville  Church  ; 
and  as  he  was  just  from  Bryantown  the  day 
before,  we  asked  him  the  news.  He  was  full 
of  news  of  the  arrest  of  Dr.  Mudd,  and  the 
boot  having  been  found  with  him,  etc.,  and 
then  during  the  conversation  he  spoke  of 
what  Dr.  Mudd  had  told  him  a  few  weeks 
before,  in  relation  to  the  assassination  of  the 
President.  Mr.  Sullivan  Wood  and  several 
other  gentlemen  were  present.  He  had  never 
mentioned  the  subject  to  me  before  that  time, 
and  I  am  certain  that  in  that  same  conver 
sation  he  spoke  of  Booth's  boot  being  found 
n  Dr.  Mudd's  house. 

I  have  attended  my  brother  professionally 
in  some  serious  attacks.  About  six  years 
ago  he  had  a  very  serious  paralytic  attack — 
partial  paralysis  of  the  face  and  part  of  the 
body.  He  labored  under  considerable  nervous 
iepression  for  some  time  before  he  recovered. 
He  was  mentally  affected  from  it.  His  mind 
was  not  exactly  right  for  a  long  time,  and  I 
am  under  the  impression  that  it  is  not  now 
at  all  times;  arid  on  these  occasions  he  is 
credulous  and  very  talkative.  He  is  very 
apt  to  tell  every  thing  he  hears,  and  believe 
every  thing  he  hears.  I  do  not  pretend  to 
say  that  he  would  tell  things  that  he  did  not 
hear,  or  make  up  things;  but  he  is  very 
talkative. 

His  reason  may  be  somewhat  affected,  and 
his  memory  also,  when  these  attacks  come 
on.  He  has  fainting  spells,  and  is  confined 
to  his  bed;  but  when  he  is  up,  and  in  the 
enjoyment  of  good  health,  he  seems  to  be 


DEFENSE    OP   SAMUEL   A.  MUDD. 


185 


rational.  These  attacks  come  on  at  no  par 
ticular  time.  When  they  do  come  on,  h 
labors  under  great  nervous  depression,  anc 
has  to  be  stimulated  materially  sometimes 
He  has  not  had  an  attack  now  for  some  time 
his  health  has  been  better. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

It  was  on  the  Sunday  after  the  soldiers 
were  at  Bryantown  that  my  brother  tolc 
me  that  Dr.  Mudd  had  said  that  Lincoln 
and  the  whole  Cabinet,  and  all  the  Union 
men  of  Maryland  would  be  killed  in  a  few 
weeks;  that  was  the  first  I  heard  any  thing 
about  it. 

By  the  COURT. 

My  brother  seemed  to  be  as  rational  on  that 
Sunday  as  I  ever  saw  him ;  he  was  not  at  all 
excited,  and  I  think  he  was  quite  capable  of 
telling  the  truth  on  that  day.  I  had  no  doubt 
in  my  mind  at  that  time  that  Dr.  Mudd  had 
said  this,  though  I  thought  he  might  probably 
have  said  it  in  joke.  At  first  I  thought  my 
brother  was  jesting,  and  told  him  that  if  it  was 
not  true  he  should  not  say  so,  and  he  said  it  was 
certainly  true;  that  Dr.  Mudd  had  made  the 
statement  in  Bryantown;  and  I  supposed  it 
was  so.  I  do  not  suppose  my  brother  would 
swear  to  any  thing  that  was  not  true. 

JAMES  W.  KICHARDS. 
For  the  Defense. — June  6. 

I  live  near  Horsehead,  Prince  George's 
County,  Md.  On  the  1st  of  June  last  I  met 
Daniel  J.  Thomas,  in  company  with  John 
R.  Richardson,  Benjamin  J.  Naylor,  George 
Lynch,  Lemuel  Watson,  and  William  Watson, 
at  the  door-yard  of  Mr.  William  Watson, 
near  Horsehead.  Mr.  Thomas  said  that  he 
had  asked  Mr.  William  Watson  and  Mr.  Ben 
jamin  J.  Naylor  for  a  certificate,  stating  that 
he  was  entitled  to  the  reward,  or  a  portion  of 
the  reward,  that  was  offered  for  the  arrest  of 
Booth  and  his  accomplices;  and  he  thought, 
if  he-  could  get  a  certificate  from  them  to  that 
effect,  he  would  be  entitled  to  a  portion  of  the 
reward  in  the  event  of  Dr.  Mudd's  being 
convicted,  as  he  (Mudd)  was  considered  one 
of  Booth's  accomplices.  The  reward,  Mr. 
Thomas  said,  was  $10,000;  he  stated  that  the 
certificate  was  to  certify  that  he  informed 
them  concerning  Dr.  Mudd's  arrest.  I  do 
not  think  he  wanted  a  certificate  stating  that 
he  was  the  cause  of  Dr.  Mudd's  being  arrested. 
He  said,  if  Dr.  Mudd  was  convicted,  he  was 
entitled  to  a  portion  of  the  reward. 

I  have  known  Daniel  J.  Thomas  for  the 
past  five  years;  his  reputation  in  the  com 
munity  for  veracity  is  very  bad.  In  any 
thing  in  which  he  had  a  prejudice,  or  where 
any  money  was  at  stake,  I  would  not  believe 
him  under  oath. 


Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

When  I  rode  up,  Mr.  Lemuel  Watson  re 
marked  to  me,  "You  are  a  justice  of  the 
peace ;  I  am  glad  you  have  come ;  I  want  you 
to  try  a  case  here.  Daniel  says  he  is  entitled 
to  so  much  reward,  and  I  want  you  to  say 
what  you  think  of  it."  I  do  not  remember 
what  reply  I  made  to  this.  Mr.  Thomas 
stated  that  he  had  applied  to  Mr.  Watson  and 
Mr.  Naylor  for  a  certificate  to  the  effect  that 
he  had  informed  them  concerning  Dr.  Mudd's 
arrest,  and  that,  if  he  could  get  such  a  certifi 
cate,  he  would  be  entitled  to  a  portion  of  the 
reward.  We  told  him  that  we  thought  he 
was  entitled  to  $20,000,  by  way  of  a  joke. 
Both  William  Watson  and  myself  told  him 
this.  I  remarked  to  him  that  I  did  not  think 
$10,000  was  enough,  and  I  thought  he  would 
better  take  $20,000.  Thomas  said  he  would 
not  want  me  to  swear  to  a  lie  for  him  to  get 
$10,000.  I  understood  Thomas  pretended  to 
Mr.'  William  Watson  that  he  had  told  him 
of  the  arrest  of  Dr.  Mudd. 

By  MR.  EWING. 

I  have  always  been  a  loyal  man,  and  a 
hearty  supporter  of  the  measures  of  the  Gov 
ernment  for  the  suppression  of  the  rebellion; 
I  voted  for  Lincoln  and  Johnson. 

In  1861  I  met  Mr.  Thomas  on  my  way 
from  teaching  school.  He  said  that  he  was 
ajoing  to  join  the  Southern  army,  and  that  he 
intended  to  come  back,  when  Beauregard 
would  cross,  and  hang  a  man  by  the  name  of 
Thomas  B.  Smith.  Thomas  was  not  a  loyal 
man  at  the  beginning  of  the  war. 

[Mr.  EWING  offered  the  following  in  evidence:! 

[OFFICIAL.] 

WAR  DEPARTMENT,     ) 
Washington,  April  20,  1865.  J 

One  Hundred  Thousand  Dollars  Reward. 

The  murderer  of  our  late  beloved  President, 
Abraham  Lincoln,  is  still  at  large.  Fifty 
thousand  dollars  reward  will  be  paid  by  this 
department  for  his  apprehension,  in  addition 
;o  any  rewards  offered  by  municipal  authori- 
,ies  or  state  executives.  Twenty-five  thousand 
dollars  reward  will  be  paid  for  the  apprehen 
sion  of  G.  A.  Atzerodt,  sometimes  called 

'  Port  Tobacco,"  one  of  Booth's  accomplices. 
Twenty-five  thousand  dollars  reward  will  be 
paid  for  the  apprehension  of  David  E.  Herold, 

n other  of  Booth's  accomplices.  Liberal  re 
wards  will  be  paid  for  any  information  that 
shall  conduce  to  the  arrest  of  either  of  the 
ibove-named  criminals  or  their  accomplices. 
-Y11  persons  harboring  or  screening  the  said 
)ersons,  or  either  of  them,  or  aiding  or  assist- 

ng    their    concealment    or    escape,    will    be 

reated  as  accomplices  in  the  murder  of  the 
President  and  the  attempted  assassination  of 

he  Secretary  of  State,  and  shall  be  subject 
,o  trial  before  a  military  commission,  and  the 


186 


THE    CONSPIRACY   TRIAL. 


punishment  of  death.  Let  the  stain  of  inno 
cent  blood  be  removed  from  the  land  by  the 
arrest  and  punishment  of  the  murderers. 

All  good  citizens  are  exhorted  to  aid  public 
justice  on  this  occasion.  Every  man  should 
consider  his  own  conscience  charged  with 
this  solemn  duty,  and  rest  neither  night  nor 
day  until  it  be  accomplished. 

EDWIN  M.  STANTON, 

Secretary  of  War. 

WILLIAM  J.  WATSON. 

For  the  Defense. — June  9. 

By  MR.  EWING. 

I  live  in  the  Eighth  Election  District, 
Prince  George's  County,  Maryland.  I  am 
acquainted,  though  not  intimately,  with  Dan 
iel  J.  Thomas.  I  was  in  my  door  yard,  near 
Horsehead,  on  the  1st  of  June,  with  John  R. 
Richardson,  Benjamin  Naylor,  George  Lynch, 
Lemuel  Watson,  and  Daniel  J.  Thomas.  On 
that  occasion,  Daniel  J.  Thomas  said,  if  my 
memory  serves  me  right,  that  if  Dr.  Mudd 
was  convicted  upon  his  testimony,  he  would 
then  have  given  conclusive  evidence  that  he 
gave  information  that  led  to  the  detection  of 
the  conspirators. 

He  said  he  thought  his  portion  of  the  re 
ward  ought  to  be  $10,000,  and  he  asked  me 
if  I  would  not,  as  the  best  loyal  man  in 
Prince  George's  County,  give  him  a  certifi 
cate  of  how  much  I  thought  he  ought  to  be 
entitled  to. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  told  him  I  did  not  think  he  was  entitled 
to  any  portion  of  the  reward,  and  would  give 
him  no  certificate.  I  then  appealed  to  his 
conscience  in  the  most  powerful  manner  I 
could,  arid  asked  him  if  he  believed  he  was 
entitled  to  the  reward?  I  did  this  three 
times,  but  he  waived  the  question  every  time 
by  saying  that  Daniel  Hawkins  said  he  was 
entitled  to  it.  He  did  not  say  that  Daniel 
Hawkins  had  told  him,  but  that  he  had  told 
somebody  else  so.  Thomas  then  asked  Mr. 
Benjamin  J.  Naylor,  I  think,  if  he  did  not 
mention  to  him  and  to  Arthur  D.  Gibson, 
before  the  killing  of  the  President,  the  lan 
guage  that  Dr.  Mudd  had  used  to  him.  Mr. 
Naylor  said  that  he  had  never  done  it  before 
or  after. 

When  I  was  appealing  to  his  conscience 
in  regard  to  the  matter,  Mr.  James  Richards, 
a  magistrate  in  the  neighborhood,  rode  up, 
and  my  brother,  Joseph  L.  Watson,  or  Lem 
uel  Watson  as  he  is  called,  appealed  to  him, 
saying,  "There  is  a  contest  going  on  here 
between  Billy  and  Daniel;  you  are  a  magis 
trate,  and  I  want  you  to  decide  it  between 
them."  Mr.  Richards  said,  "  Lem,  let  us  say 
that  he  is  entitled  to  $20,000  of  the  reward." 
Mr.  Thomas  then  said,  u  No,  sir,  I  would 
not  have  either  of  you  gentlemen  swear 


falsely,  though  by  your  doing  so  it  would  give 
me  $20,000."  That  is  what  I  understood  him 
to  say. 

By  MR.  EWING. 

Mr.  Richards  did  not  offer  to  take  a  false 
oath.  He  was  joking;  I  am  confident  of 
that.  Mr.  Richards  is  a  true  Union  man. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Q.  Do  you  not  consider  that  Daniel  J. 
Thomas  is  entitled  to  belief  on  his  oath  ? 

A.  I  have  no  reasons  bearing  on  my  mind 
to  offer  to  the  Court  why  I  would  not ;  there 
fore,  I  must  say,  I  would. 

Q.  Would  you  believe  him  on  his  oath  ? 

A.  I  would. 

Q.  He  has  as  good  a  reputation  for  truth 
as  most  of  his  neighbors  down  there  ? 

A.  I  should  not  think  he  had  as  good  a 
reputation  for  truth  as  most  of  the  neighbors. 

Mr.  EWING  objected  to  this  course  of  ex 
amination  as  improper.  It  was  not  legiti 
mate  cross-examination.  The  witness  had 
been  subpenaed  by  the  Government,  and,  at 
the  consent  of  the  Judge  Advocate,  was 
called  by  the  accused  as  to  a  single  point, 
with  the  understanding  that  he  should  be 
treated  as  a  witness  for  the  accused  only  to 
that  one  point. 

The  JUDGE  ADVOCATE  (while  not  yielding 
the  point  that  the  line  of  examination  pur 
sued  was  improper)  stated  that  he  would 
agree  now  to  take  this  witness  as  one  for  the 
prosecution  ;  and  the  witness  was  accordingly 
examined  for  the  prosecution  in  rebuttal. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

I  was  not  much  acquainted  with  Daniel 
J.  Thomas  till  1863.  He  lives  in  Charles 
County,  and  I  in  Prince  George's.  I  do  not 
know  what  kind  of  a  reputation  he  bore  in 
Charles  County,  but  in  my  neighborhood  they 
spoke  evil  of  him.  They  say  he  tells  a  good 
many  lies,  but  I  think  people  tell  him  as 
many  lies  as  he  tells  them.  Though  some 
speak  well  of  him,  people  generally  say  that 
his  reputation  for  truthfulness  is  bad. 

Q.  I  ask  you  your  opinion,  whether  you 
consider,  from  all  you  hear  of  his  reputation 
there,  that  his  character  for  truth  is  such 
that  he  is  entitled  to  be  believed  on  oath  ? 

A.  I  believe  that  he  is;  because  if  I  was 
to  come  here  and  say  he  was  not  qualified, 
I  should  have  to  say  that  half  the  men 
around  there  are  not  qualified. 

By  MR.  EWING. 

Q.  Are  you  able  to  say  that  you  know  what 
Mr.  Thomas's  general  reputation  is,  in  the 
community  in  which  he  lives,  for  truth? 

A.  I  think  I  have  stated  that  it  is  not  good 
for  truth  in  speaking;  but  I  think  he  lies 
more  in  self-praise,  to  make  the  people  think 
a  great  deal  of  him,  than  in  any  other  way. 
I  have  never  heard  of  Mr.  Thomas  telling  a 
lie  that  would  make  a  difference  between  man 


DEFENSE    OF   SAMUEL   A.  MUDD. 


and  man.     I  have  known  of  no  quarrels  t 
be  kicked  up  in  my  neighborhood  about  an; 
thing  Mr.  Thomas   has  told   from   one   man 
to  another. 

Q.  Do  you  know  whether  Mr.  Thomas  wa 
a  loyal   man   in  the  beginning  of  the  war 

A.  I  do   not  know.     He  was  represented 
not,  to  me ;  but  I  suppose  if  he  had  been,  his 
feelings   would    have    been    coerced   by    th 
people  by  whom  he  was  surrounded. 

Q.  Do  you  know  who  he  supported  at  the 
last  election  for  President  ? 

.A.    I  do  not  know;  but  he   electioneerec 
for  George  B.  McClellan. 

JOHN  C.  HOLLAND. 

For  the  Defense. — June  8. 
By  MR.  EWING. 

I  hold  the  position  of  Provost  Marshal  of 
the  draft  for  the  Fifth  Congressional  Distric 
of  Maryland.  I  know  Daniel  J.  Thomas 
from  the  fact  that  he  was  a  drafted  man 
and  I  examined  him  at  Benedict,  Charles 
County.  I  never  received  a  letter  from  him 
in  which  the  name  of  Dr.  Mudd  was  men 
tioned;  nor  any  letter  stating  that  the  Presi 
dent,  or  any  member  of  his  Cabinet,  or  any 
Union  man  in  the  State  of  Maryland  would 
be  killed.  I  received  a  letter  from  him  dated 
February  9,  1865,  but  it  contained  no  refer 
ence  whatever,  direct  or  indirect,  to  this  sub 
ject,  nor  to  Dr.  Samuel  A.  Mudd.  Mr. 
Thomas,  I  believe,  was  commissioned  as  an 
independent  detective;  that  is,  commissioned 
specially  by  me  to  arrest  drafted  men  that  did 
not  report  and  deserters,  receiving  as  compen 
sation  the  reward  allowed  by  law.  He  was  not 
under  pay  from  the  Government.  Such  com 
missions  were  given  to  any  one  who  applied. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

The  letter  contained  a  reference  to  Dr. 
George  Mudd,  with  whom  I  am  acquainted, 
but  none  whatever  to  Dr.  Samuel  Mudd;  I 
am  not  acquainted  with  him. 

BICHARD  EDWARD  SKINNER  (colored.) 
For  the  Defense. — June  27. 

I  live  in  Charles  County,  Md.  I  am  the  serv 
ant  of  Mrs.  Thomas,  the  mother  of  Daniel 
J.  Thomas,  whom  I  have  known  for  thirty 
years.  I  know  what  is  thought  of  him  in  the 
community  for  telling  the  truth,  and  he 
doesn't  bear  a  good  reputation  among  gen 
tlemen.  I  have  always  been  living  with  him, 
and  I  have  heard  gentlemen  say  they  would 
not  believe  him  under  oath.  I  do  not  like 
to  say  that  I  would  not  believe  him  when  he 
was  under  oath. 

Mr.  Daniel  J.  Thomas  was  not  a  loyal  man 
on  the  breaking  out  of  the  war;  since  then 
he  has  sometimes  been  loyal,  and  then  again 
he  has  not  been  so;  just  changeable  like. 


187 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  never  heard  gentlemen  speak  of  Mr. 
Thomas  testifying  in  a  court  of  justice,  and 
I  do  not  mean  to  say  that  Mr.  Thomas,  when 
he  is  on  his  oath  in  court,  is  not  to  be  be 
lieved. 

JOHN  L.  TURNER. 

For  the  Defense. — June  9. 

By  MR.  EWING. 

I  live  in  the  lower  part  Prince  George's 
County,  near  Magruder's  Ferry,  on  the  Pa- 
tuxent  River,  six  or  seven  miles  from  Dr. 
Mudd's.  I  have  a  slight  acquaintance  with 
Daniel  J.  Thomas.  He  is  not  regarded  as  a 
truthful  man  by  any  means  in  that  neigh 
borhood.  From  his  general  reputation,  I 
could  not  believe  him  under  oath,  where  he 
was  much  interested. 

Mr.  Thomas  has  been  loyal  part  of  the 
time  since  the  war  commenced,  but  I  can 
not  say  that  he  has  been  so  all  the  time.  He 
has  been  loyal  for  the  last  year  or  two,  but 
I  do  not  know  how  he  stood  at  the  begin 
ning  of  the  war. 

Dr.  George  D.  Mudd  has  been  considered 
a  loyal  man  throughout  the  whole  war.  I 
have  always  been  a  loyal  man  and  a  sup 
porter  of  the  Government.  I  voted  for  George 
B.  McClellan  for  President,  because  I  con 
sidered  him  as  good  a  loyal  man  and  as 
good  a  Union  man  as  Mr.  Lincoln ;  and  as 
ne  said  that  if  he  were  elected  the  war  would 
only  last  a  few  months,  I  voted  for  him  on 
that  ground. 

I  know  Dr.  Sam  Mudd.  I  have  known 
lim  since  he  was  a  boy.  His  reputation  for 
aeace,  order,  and  good  citizenship  has  been 
very  good.  I  have  always  considered  him  a 
*ood,  peaceable,  and  quiet  citizen,  as  much 
50  as  any  man  we  have  among  us.  I  never 
<new  him  do  any  thing  in  aid  of  the  rebel- 
ion. 

POLK  DEAKINS. 

For  the  Defense. — June  9. 

By  MR.  EWING. 

I  live  near  Gallant  Green,  Charles  County, 
Hd.  I  have  been  acquainted  with  Daniel  J. 
Thomas  ever  since  I  can  remember.  His 
eputation  in  the  community  for  truth-telling 
s  very  bad;  and  if  he  had  any  inducement 
o  speak  other  than  the  truth,  I  would  not 
>elieve  him  under  oath. 

In  1861,  Mr.  Thomas  said  he  was  going 
ver  into  Virginia,  and  he  tried  to  persuade 
le  to  go,  but  I  did  not. 

JEREMIAH  T.  MUDD. 

Recalled  for  the  Defense. — May  27. 

By  MR.  EWING. 

I  am  acquainted  with  Daniel  J.  Thomas, 
nd  know  his  reputation  in  the  neighborhood 


188 


THE    CONSPIRACY   TRIAL. 


in  which  he  lives;  for  truth  and  veracity  it 
is  b»4;  and  I  do  not  think  I  could  believe 
him  under  oath. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  base  my  opinion,  as  to  his  general  repu 
tation,  on  my  knowledge  of  him,  and  on  his 
reputation  in  the  neighborhood.  He  is  known 
to  go  riding  about  the  country,  telling  things 
tlu:,t  are  marvelous  arid  miraculous.  I  may 
safely  say  I  have  heard  as  many  as  ten  or 
a  dozen  persons  speak  of  his  bad  reputation  for 
truth  and  veracity.  Among  others,  I  have 
heard  Dr.  George  Mudd  and  Mr.  Gardiner. 
I  have  never  heard  any  one  say  that  Thomas 
had  ever  sworn  falsely  in  any  court. 

By  MR.  STONE. 

Thomas  represents  himself  as  a  detective, 
acting  under  the  orders  of  Colonel  Holland; 
whether  such  is  the  fact  I  do  not  know. 

LEMUEL  L.  ORME. 

For  the  Defense. — June  6. 

By  MR.  EWING. 

I  am  acquainted  with  Daniel  J.  Thomas ; 
I  knew  him  first  when  he  was  not  more  than 
thirteen  or  fourteen  years  of  age.  He  is 
looked  upon  in  the  community  in  which  he 
lives  as  a  man  that  hardly  ever  tells  the 
truth ;  his  reputation  for  veracity  is  very  bad. 
I  never  heard  him  tell  any  thing  of  any 
length,  without  betraying  himself  in  a  story 
before  he  got  through;  and  I  have  scarcely 
heard  of  a  man  in  the  neighborhood  that 
would  believe  any  thing  he  might  tell.  If 
he  had  the  least  prejudice  against  a  person, 
I  could  not  believe  him  under  oath. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

If  he  had  a  prejudice,  and  was  under  oath, 
I  should  hardly  believe  him  any  how. 

By  the  JUDGE  ADVOCATE. 

To  the  best  of  my  knowledge  and  belief, 
I  have  been  loyal  to  the  Government  during 
this  rebellion.  I  have  never  done  any  thing 
to  oppose  the  efforts  of  the  Government  in 
suppressing  the  rebellion;  I  have  always 
wished  that  the  Union  might  be  sustained, 
and  that  the  Government  might  not  be 
broken  up,  and  have  always  so  expressed 
myself.  I  had  no  idea  of  the  South  ever 
forcing  the  North  to  go  to  them;  and  so  far 
as  the  Union  is  concerned,  I  always  expected 
that,  if  maintained,  it  would  be  by  the  North. 

By  MR.  EWING. 

If  words  testify  any  thing,  Mr.  Thomas 
has  not  been  a  loyal  man  since  the  begin 
ning  of  the  war.  In  the  fall  of  1861,  for  a 
distance  of  two  miles,  he  talked  to  me,  and 
advised  me  to  go  South  with  him.  He  may 
have  changed  his  sentiments  since,  but  dur 


ing  the  first  twelve  or  eighteen  months  of 
the  war,  he  was  looked  upon  as  a  great 
friend  of  the  South;  helping  as  far  as  his 
ability  went.  He  was  not  looked  upon  as 
able  to  help  anybody,  but  his  conversations 
were  all  that  way. 

JOHN  H.  BADEN. 

For  the  Defense. — June  8. 

By  MR.  EWING. 

I  live  in  Anacostia  District,  Prince  George's 
County,  Md.  I  know  the  reputation  Daniel 
J.  Thomas  bears  for  truth  and  veracity;  he 
is  accounted  a  very  untruthful  man  ;  I  be 
lieve  few  place  any  confidence  in  what  he 
says.  From  the  knowledge  I  have  of  his 
reputation  for  veracity  I  would  not  believe 
him  under  oath. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  have  never  heard  him  charged  with 
swearing  falsely.  I  have  heard  him  tell  a 
great  deal  that  was  not  true,  but  I  never 
heard  him  swear  to  it. 

Q.  From  your  knowledge  of  human  char 
acter,  do  you  not  think  there  are  many  men 
who  talk  idly  and  extravagantly,  and  some 
times  untruthfully,  who  would  nevertheless, 
when  under  the  obligations  of  an  oath,  speak 
the  truth? 

A.  I  do  not  know,  sir.  I  do  not  place  any 
confidence  myself  in  what  I  hear  him  say. 
I  have  nothing  against  Mr.  Thomas;  I  have 
known  him  a  good  while,  but  I  do  not  put 
any  confidence  in  what  I  hear  him  say. 

Q.  That  is  not  an  answer  to  my  question. 
Do  I  understand  you  to  hold  that  a  man  who 
will  sometimes  speak  untruthfully,  will  neces 
sarily  swear  to  an  untruth  in  a  court  of  jus 
tice?  Is  that  your  judgment  of  human  char 
acter  and  conduct? 

A.  Not  all. 

ELI  J.  WATSON. 

For  the  Defense. — June  8. 

By  MR.  EWING. 

I  reside  in  the  Eighth  Election  District, 
Prince  George's  County,  Md.  I  have  known 
Daniel  J.  Thomas  ever  since  he  was  a  boy. 
I  know  his  reputation  for  truth  and  veracity 
in  the  neighborhood  in  which  he  lives,  and  it 
is  very  bad.  From  that  general  reputation, 
and  my  knowledge  of  his  character,  I  would 
not  believe  him  under  oath. 

I  saw  Mr.  Thomas  on  my  farm  on  the  1st 
of  June;  he  said  he  had  been  a  witness 
against  Dr.  Mudd,  and  that  Joshua  S.  Nay- 
lor  had  sworn  to  put  down  his  oath ;  he  also 
said  that  if  his  oath  was  sustained,  he  ex 
pected  a  portion  of  the  reward  that  the  Gov 
eminent  was  to  give  for  Booth. 

Q.  And  that  Joshua  S.  Naylor  had  sworn 
to  put  down  his  oath;  what  do  vou  under 
stand  by  that? 


DEFENSE   OF    SAMUEL    A.  MUDD. 


189 


Assistant  Judge  Advocate  BINGHAM  objected 
to  the  question,  and  it  was  waived. 

JOSHUA  S.  NAYLOR. 

For  the  Defense. — May  30. 

By  MR.  EWING. 

I  reside  in  the  Eighth  Election  District, 
Prince  George's  County,  Md,  I  have  known 
Daniel  J.  Thomas  since  he  was  a  boy.  His 
general  reputation  for  truth  and  veracity  in 
that  neighborhood  is  bad,  and  such  that  1 
would  not  believe  him  under  oath.  His  rep 
utation  is  that  he  never  tells  the  truth  if  a  lie 
will  answer  his  purpose  better;  and,  though 
it  is  hard  to  say  it  of  any  man,  I  could  not 
believe  him  under  oath. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  can  not  say  that  he  is  reputed  to  be  a 
loyal  and  an  honest  man  in  his  neighbor 
hood.  As  to  his  loyalty,  he  is  sometimes 
one  thing  and  sometimes  another,  just  as 
the  prospects  of  the  different  parties  seem  to 
be  going.  During  the  latter  part  of  the  re 
bellion,  he  has  pretended  to  be  a  warm  sup 
porter  of  the  Government,  and  he  may  have 
been  sincere;  but,  from  what  others  have  told 
me,  he  said  to  them  he  was  not  during  the 
early  part  of  the  rebellion. 

I  never  heard  him  speak  under  oath,  and 
can  not  say  that  I  have  ever  heard  him 
charged  with  swearing  falsely. 

By  MR.  EWING. 

1  have  been  a  supporter  of  the  Govern 
ment  and  the  Administration  of  the  United 
States  at  all  times  and  under  all  circum 
stances.  Dr.  George  Mudd  I  have  heard 
spoken  of  as  a  good  Union  man,  and  a  sup 
porter  of  the  Government  in  the  war  against 
the  rebellion 

JOHN  WATERS. 

For  the  Defense. — May  9. 

By  MR.  EWING. 

1  live  in  Charles  County,  Maryland.  I 
have  been  loyal  to  the  Union,  and  a  sup 
porter  of  the  Government  in  the  prosecution 
of  the  war. 

I  have  known  Daniel  J.  Thomas  from  a 
boy.  His  reputation  for  truth  and  veracity 
has  not  been  very  good  ;  I  think  the  people 
generally  regard  him  as  not  very  truthful. 

I  am  acquainted  with  the  prisoner,  Dr. 
Samuel  Mudd;  his  reputation  in  the  com 
munity,  as  a  citizen,  has  been  very  good. 
Before  the  arrest  of  Dr.  Mudd,  I  think  I  saw 
Mr.  Thomas  with  a  hand-bill  in  his  hand, 
offering  a  reward  for  the  arrest  of  the  assas 
sins  or  their  accomplices.  That,  I  believe, 
was  on  the  Tuesday  after  the  assassination 
of  the  President. 


DANIEL  W.  HAWKINS. 

For  the  Defense. — June  9. 
By  MR.  EWING. 

I  am  by  profession  a  lawyer.  I  live  about 
four  miles  and  a  half  from  Bryantown,  in 
Charles  County.  I  have  krown  Mr.  Daniel 
J.  Thomas  from  ten  to  fifteen  years.  His 
general  reputation  in  the  community  for 
truth  and  veracity  is  not  very  good.  If  I 
were  a  juror  or  a  judge,  I  should  think  it 
very  unsafe  to  convict  on  his  evidence.  I 
should  have  very  serious  doubts  about  his 
oath. 

I  am  very  well  acquainted  with  Dr.  George 
Mudd ;  and  I  can  say  that  I  do  not  know  a 
more  loyal  man  than  he  in  the  State  of 
Maryland.  My  attitude  toward  the  Govern 
ment  during  the  war  has  been  strictly  loyal ; 
and  I  have  been  a  supporter  of  the  Govern 
ment  in  its  war  measures  from  the  com 
mencement  of  the  rebellion. 

JOSEPH  WATERS. 

For  the  Defense. — May  9. 

By  MR.  EWING. 

I  live  at  Gallant  Green,  Charles  County, 
Maryland.  1  have  known  Daniel  J.  Thomaa 
from  childhood.  His  general  reputation  in 
the  community  for  truth  and  veracity  is  very 
bad;  and  from  my  knowledge  of  his  repu 
tation  I  do  not  think  I  could  believe  him 
under  oath. 

I  have  known  Dr.  Mudd  from  childhood. 
His  reputation  as  a  citizen  has  been  very 
good,  as  far  as  I  know.  I  have  never  known 
any  thing  against  him.  I  have  not  been  in 
any  way  engaged  in  aiding  the  rebellion, 
but  have  been  a  loyal  man  throughout  the 
war. 

FRANK  WARD. 

For  the  Defense. — May  9. 
By  MR.  EWING. 

I  live  at  Horsehead,  Prince  George's 
County,  Maryland.  I  have  known  Daniel  J. 
Thomas  ever  since  he  was  a  boy.  His  repu 
tation  for  veracity  in  the  community  is  pretty 
bad.  I  can  not  say  that  Mr.  Thomas  has 
been  a  loyal  man  throughout  the  war.  He 
is  first  one  thing  and  then  another;  some 
times  Union  and  sometimes  disloyal. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  voted  for  McClellan.  I  do  not  recollect 
whether  I  voted  for  Harris  for  Congress  or 
not;  I  certainly  did  not  rejoice  at  the  suc 
cess  of  the  rebels  at  the  first  battle  of  Bull 
Run. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

I  have  heard  many  persons  speak  in  refer 
ence  to  the  reputation  of  Mr.  Thomas,  but  I 


190 


THE    CONSPIRACY    TRIAL. 


can  not  recollect  exactly  what  they  said.     I 
live  about  five  miles  from  Mr.  Thomas. 

By  MR.  EWING. 

My  knowledge   of  his  reputation  was  ob 
tained  before  this  trial  commenced. 


IN  WASHINGTON,  DECEMBER  23,  1864. 

JEREMIAH  T.  MUDD. 

For  the  Defense. — May  26. 
By  MR.  EWING. 

I  reside  in  Charles  County,  Maryland, 
about  a  mile  and  a  half  from  Dr.  Samuel 
A.  Mudd.  Dr.  Mudd  and  myself  went  to 
Washington  together  on  the  morning  of  the 
23d  of  December  last.  I  recollect  the  date 
distinctly,  because  we  got  home  on  the  24th, 
Christmas  eve.  It  was  a  little  in  the  night 
when  we  arrived  in  Washington ;  we  put  up 
our  horses  near  the  Navy  Yard,  and  went 
to  the  Pennsylvania  House,  registering  our 
names  for  lodgings.  We  went  to  a  restau 
rant  on  the  avenue,  now  Dubant's,  I  think, 
for  supper,  and  staid  there  possibly  an  hour. 
We  then  went  to  Brown's  Hotel,  and  after 
ward  to  the  National  Hotel,  and  there  was  a 
tremendous  crowd  there,  and  we  got  separated. 
I  met  a  friend  at  the  National,  conversed 
with  him  a  short  time,  then  went  down  the 
avenue  and  visited  some  clothing  stores,  and 
returned  to  the  Pennsylvania  House.  Dr. 
Mudd  came  in  there  shortly  after  me,  and 
we  went  to  bed.  There  was  no  one  with 
him  when  I  first  saw  him,  as  he  came 
through  the  folding  doors  to  the  room  where 
I  was;  but  there  may  have  been  some  few 
persons  in  the  adjoining  room  from  which 
he  came. 

The  next  morning  I  went  with  Dr.  Mudd 
to  purchase  a  cooking  stove,  and  then  we 
separated,  he  to  make  some  little  purchases 
for  himself,  and  I  to  buy  some  clothing,  etc. ; 
but  we  saw  each  other  repeatedly,  every 
ten  or  fifteen  minutes,  till  about  1  o'clock. 
Then  we  went  together  down  to  the  Navy 
Yard  for  our  horses,  and  left  the  city  about 
3  o'clock. 

Q.  Do  you  know  who  took  the  articles 
which  he  bought  down  to  his  home? 

Assistant  Judge  Advocate  BINGHAM.  I 
object  to  any  inquiry  about  the  articles  he 
bought,  or  who  took  them.  It  is  of  no  con 
sequence. 

Mr.  EWING.  May  it  please  the  Court,  it  is  of 
a  very  great  deal  of  consequence.  The  prose 
cution  has  attempted  to  prove  by  one  witness 
a  meeting  between  Booth  and  Dr.  Mudd,  and 
an  introduction  of  Booth  to  Surratt  by  Dr. 
Mudd,  here  in  Washington.  We  expect  to 
be  able  to  show  to  the  Court  conclusively, 
that  if  there  was  any  such  meeting,  it  must 
have  been  at  this  visit  to  the  city  of  Dr. 
Mudd  about  which  we  are  now  inquiring. 


In  that  view,  it  is  of  great  consequence  to 
the  accused  to  be  able  to  show  that  he  came 
here  on  business  unconnected  with  Booth,  for 
the  purpose  of  rebutting  the  presumption  or 
inference  unfavorable  to  him  which  might  be 
drawn  from  the  fact  of  his  having  met  Booth 
here.  That  alleged  meeting  with  Booth  has 
been  put  in  evidence  as  part  of  the  res  gestce 
of  the  conspiracy;  on  any  other  ground,  it 
would  have  been  irrelevant  and  inadmissible. 
We  have  a  right  to  show  that  Dr.  Mudd  came 
to  the  city  that  time  for  other  purposes;  we 
have  a  right  to  show  the  acts  that  he  did,  in 
order  to  establish  that  his  visit  was  a  legiti 
mate  business  visit  to  Washington.  There 
fore  it  is  that  we  ask  who  took  the  things 
down  ;  and  we  expect  to  show  that  he  ar 
ranged,  before  starting  from  home,  to  have 
the  things  which  he  was  coming  here  to  pur 
chase  hauled  down,  and  that  therefore  he 
came  here  on  legitimate  business. 

Assistant  Judge  Advocate  BINGHAM.  If 
the  gentleman  had  shown  that  this  man  was 
with  Booth  on  that  day,  I  could  see  some 
thing  in  his  argument;  but  as  it  is,  it  does 
not  amount  to  any  tiling. 

Mr.  EWING.  But  I  assure  you  we  expect 
to  follow  this  up  by  testimony  which  will 
conclusively  establish  that  he  could  not  have 
been  with  Booth  upon  any  other  day  between 
that  day  and  the  assassination  of  the  Presi 
dent. 

Assistant  Judge  Advocate  BINGHAM.  They 
undertake  to  prove  by  this  witness  that  he 
could  not  have  been  with  Booth  then ;  this 
five-minute  operation  is  introduced  for  that 
purpose,  as  I  understand.  But  now,  in  order 
to  make  out  something,  for  some  purpose  I 
can  not  comprehend,  they  propose  to  prove 
that  this  man  bought  crockery  or  something 
that  day  in  town,  and  got  somebody  to  haul 
it  home.  That  has  nothing  in  the  world  to  do 
with  this  case.  The  amount  of  it  all  is,  that 
we  have  introduced  testimony  here  to  prove 
this  man's  association  with  Booth  in  Wash 
ington,  in  another  month,  at  the  National 
Hotel.  If  they  can  disprove  that,  well  and 
good ;  but  it  does  not  tend  to  disprove  it,  and 
does  not  tend  to  throw  any  light  on  the  sub 
ject,  to  show  that,  in  December,  (another 
time  altogether  than  that  stated  by  our  wit 
ness  for  the  meeting  of  Booth  and  Mudd, 
which  the  Court  will  remember  was  about 
the  middle  of  January,)  Mudd  bought  cer 
tain  things,  and  hired  somebody  to  take  them 
home.  All  that  has  nothing  to  do  with  the 
case. 

The  Commission  overruled  the  objection. 

WITNESS.  I  took  a  portion  of  them  my 
self.  The  stove  was  to  have  been  taken  down 
by  Mr.  Lucas,  who  had  come  to  the  market 
to  sell  a  load  of  poultry,  and  was  then  in 
market  with  his  wagon.  His  taking  the 
stove  depended  upon  his  selling  his  poultry ; 
it  was  a  dull  market,  and  Dr.  Mudd  and  I 
went  three  times  to  see  if  he  had  sold  out,  so 
that  he  could  take  it. 


DEFENSE    OF    SAMUEL   A.  MUDD. 


191 


I  have  known  Dr.  Mudd  from  early  youth 
His  general  character  for  peace,  orde'r,  an< 
good    citizenship    in    the    neighborhood    ii 
which  he  resides  is  exemplary;  he  has  a] 
ways    been    amiable    and   estimable,  a  gooc 
neighbor,  honest  and  correct.     I  never  in  al 
my  life   heard  any  thing  to  the  contrary, 
think  him  humane  and  kind  to  his  servants 
I  have  lived  very  close  to  him  all  my  life, 
he  is  so  regarded  universally,  I  believe.     He 
did  not  work  them  hard  either;  at  least  the} 
did  not  do  a  great  deal  of  work. 

I  remember  Booth  being  in  that  county, 
I  saw  him  at  Church   at  Bryantown  in  the 
latter  part  of  November  or  early  in  Decern 
ber    last.     I  noticed   a   stranger    there,    anc 
inquired  who  he  was,  and  was  told  that  his 
name  was  Booth,  a  great  tragedian.     Frorr 
the  description  of  him,  and  from  his  photo 
graph,  I  am  satisfied  it  was  the  same  man 
I  only  know  what  I  heard  others  say  aboui 
his  business  there — the  common  talk. 

Q.   What  was  the  common  talk? 

Assistant  Judge  Advocate  BINGHAM.  The 
witness  need  not  state  what  the  common  talk 
was.  It  is  not  competent  evidence  to  under 
take  to  prove  common  talk  about  a  party 
not  on  trial  here. 

Mr.  EWING.  May  it  please  the  Court,  I 
know  it  is  the  object  of  the  Government  to 
give  the  accused  here  liberal  opportunities 
of  presenting  their  defense.  I  am  sure  the 
Judge  Advocate  does  not  intend,  by  drawin 
the  reins  of  the  rules  of  evidence  tight,  to 
shut  out  testimony  which  might  fairly  go  to 
relieve  the  accused  of  the  accusations  made 
against  them.  I  think  it  is  better,  not  only 
for  them,  but  for  the  Government,  whose 
majesty  has  been  violated,  and  whose  law 
you  are  about  to  enforce,  that  there  should 
be  liberality  in  allowing  these  parties  to  pre 
sent  whatever  defense  they  have  to  offer. 
We  wish  to  show  that  Booth  was  in  that 
county  ostensibly,  according  to  the  common 
understanding  of  the  neighborhood,  for  the 
purpose  of  selecting  and  investing  in  lands. 
We  introduce  this  as  explanatory  of  his 
meeting  with  Dr.  Mudd,  whose  family,  as  we 
expect  to  show,  were  large  land-holders,  and 
anxious  to  dispose  of  their  lands,  and  1  trust 
to  the  liberality  of  the  Court  to  allow  us  to 
prove  it. 

The  JUDGE  ADVOCATE.  I  wish  certainly  the 
utmost  liberality  in  the  introduction  of  the 
testimony  of  the  defense,  here,  and  I  hope  the 
Court  will  maintain  it.  If  I  at  any  time  fall 
short  myself  of  maintaining  that  spirit,  I 
trust  the  Court  will  do  it.  I  think,  however, 
in  this  case  there  is  no  principle  of  evidence 
that  will  admit  the  mere  talk  of  a  neighbor 
hood.  Any  fact  which  any  witness  knows, 
tending  to  show  for  what  purpose  Booth  was 
there,  no  matter  what  that  fact  may  be,  is 
admissible;  but  a  mere  idle  rumor,  of  which 
you  can  not  take  hold,  on  which  you  can 
not  cross-question,  in  regard  to  which  you 
can  not  speak,  it  seems  to  me,  on  no  princi 


ple  by  which  the  ascertainment  of  truth  is 
sought, ( can  be  received.  I  wish  to  state 
most  distinctly  to  the  Court  that  I  desire 
the  utmost  latitude  of  inquiry  indulged  in, 
and  that  every  thing  shall  be  introduced 
which  tends  in  any  manner  to  illustrate  the 
defense  which  is  made  for  these  prisoners.  I 
wish  no  technical  objection,  and  shall  never 
make  one,  and,  if  made,  I  trust  it  will  never 
be  sustained  by  this  Court. 

The  Commission  sustained  the  objection. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  really  do  not  know  Dr.  Mudd's  reputa 
tion  for  loyalty  to  the  Government  of  the 
United  States  during  this  war.  I  have  my 
self  heard  him  say  that  he  did  not  desire 
to  see  two  Governments  here.  I  have  never 
known  of  any  disloyal  act  of  his,  and  never 
heard  of  any.  I  never,  that  I  am  aware  of, 
heard  any  disloyal  sentiments  expressed  by 
him.  I  have  heard  him  express  sentiments 
opposed  to  the  policy  of  the  Administration. 
I  do  not  know  that  he  has  been  open  and 
undisguised  in  his  opposition  to  the  endeav 
ors  of  the  Government  to  suppress  the  re 
bellion.  For  the  past  two  or  three  years 
our  people  have  had  no  disposition  to  talk 
about  the  rebellion  or  the  war.  For  a  long 
time  I  would  seldom  talk  about  it  with  any 
one;  and  would  not  send  to  the  post-office 
or  my  papers  perhaps  for  a  week,  and  then 
.vould"  not  read  them — just  look  over  them 
on  Sunday.  I  never  heard  Dr.  Mudd  say 
that  the  State  of  Maryland  had  been  false  to 
ler  duty  in  not  going  with  other  States  in 
he  rebellion  against  the  Government;  and 
[  never  saw  Confederate  soldiers  at  his 
louse.  I  did  hear  of  his  shooting  one  of  his 
servants,  and  do  not  doubt  that  it  was  true. 
I  heard  it  was  only  a  flesh  wound.  I  do 
not  know  that  the  boy  is  lame  still;  I  do 
not  think  I  have  seen  him  since. 

By  MR.  EWING. 

I   heard   that   the  servant  who  was  shot 
was  obstreperous;  that  he  had  been  ordered 
o  do  something  which  he  refused  to  do,  and 
tarted  to  go  away;  that  the  Doctor  had  his 
hot-gun  with  him,  and  he  thought  he  would 
hoot  him  to  frighten  him,  and  make   him 
top  and  come  back.     The  Doctor  told  me 
o  himself.     I  believe  he  shot  the  boy  some 
where  in  the  leg. 

I  have  heard  Dr.  Mudd  make  use  of  ex- 
iressions  in  opposition  to  the  policy  of  the 
Ldministration,  but  only  in  reference  to  the 
mancipation  policy.  He  was  a  large  slave- 
wner — and  his  father — too,  and  I  suppose  did 
ot  want  to  lose  his  property;  this  I  sup- 
iose  to  be  the  cause  of  his  uncompromising 
pposition  to  the  emancipation  policy  of  the 
government.  I  never  in  my  life  heard  a 
iolent  expression  from  him;  it  is  not  in  his 
haracter ;  nor  did  he  ever  indulge  in  violent 
enunciations  of  the  Government. 


192 


THE    CONSPIRACY   TRIAL. 


Recalled  for  the  Defense.— May  27. 
By  MR.  EWING. 

1  have  seen  the  handwriting  of  Dr.  Samuel 
A.  Mudd  frequently,  and  am  acquainted 
with  it. 

'LExhibiting  to  the  witness  the  register  of  the  Pennsyl 
vania  House,  heretofore  produced.] 

I  recognize  his  handwriting  on  the  page 
open  before  me;  it  is  dated  Friday,  December 
23,  1864.  The  book  is  the  Pennsylvania 
House  register,  with  which  I  am  very  famil 
iar,  having  repeatedly  registered  my  name  in 
it  for  years  past.  We  went  into  the  hotel 
together,  and  I  registered  my  name  two 
names  above  his.  I  do  not  know  at  what 
hotel  Dr.  Mudd  was  in  the  habit  of  stopping 
when  he  went  to  Washington.  He  had 
some  relatives  there,  and  I  frequently  heard 
of  his  staying  the  night  with  them.  I  never 
was  in  Washington  with  him  before. 

J.  H.  MONTGOMERY. 

For  the  Defense. — May  29. 

By  MR.  EWING. 

I  am  acquainted  with  the  prisoner,  Dr. 
Samuel  A.  Mudd.  On  the  22d  of  last  De 
cember,  I  think,  the  Thursday  morning 
before  Christmas,  he  asked  me  if  I  could 
bring  a  stove  from  Washington  for  him.  I 
told  him  that  Lucas,  who  hucksters  for  me 
and  drives  my  wagon,  could  bring  it  down. 
Lucas  went  up  on  Wednesday,  and  was  to 
come  down  on  Thursday,  but  he  did  not 
come  till  Friday,  and  returned  the  same  day. 

FRANCIS  LUCAS. 

For  the  Defense.— May  26. 

By  MR.  STONE. 

I  am  a  huckster,  and  live  about  two  miles 
from  Bryantown,  Maryland.  On  Christmas 
eve  last,  Dr.  Mudd  came  to  me  in  market 
and  asked  me  to  take  a  stove  down  for  him ; 
I  promised  to  do  so,  if  I  could.  He  came 
to  me  two  or  three  times  to  tell  me  not  to 
forget  it ;  and  I  finally  told  him  it  was  out 
of  my  power  to  take  it. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

B  ING  HAM. 

I  suppose  it  was  about  9  or  10  o'clock  on 
Christmas  eve  that  he  came  to  ask  me  to 
haul  the  stove. 

SAMUEL  MCALLISTER. 

For  the  Defense. — May  26. 

By  MR.  STONE 

I  have  been  a  clerk  at  the  Pennsylvania 
House  in  this  city  since  the  2d  of  December 
last. 

[Submitting  to  the  witness  an  hotel  register.] 

That  is  the  register  of  the  Pennsylvania 
House.  I  have  examined  it  very  carefully, 


and  the  name  of  Dr.  Samuel  A.  Mudd  does 
not  appear  on  it  for  the  month  of  January. 
I  have  never,  to  my  knowledge,  seen  the 
accused,  Samuel  A.  Mudd,  before.  He  may 
have  stopped  at  the  house  and  I  not  know 
him,  but  his  name  would  certainly  be  on  the 
register;  for  no  one  is  allowed  to  stop  one 
night  without  registering  his  name.  Persons 
often  come  in  to  take  a  meal,  and  pay  when 
they  go  out,  and  do  not  register  their  names. 
I  find  the  name  "Samuel  A.  Mudd''  entered 
under  date  of  December  23,  1864,  and  also 
"  J.  T.  Mudd;"  they  both  occupied  the  same 
room. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
B  ING  HAM. 

I  do  not  know  who  slept  with  Atzerodt  at 
the  Pennsylvania  House  on  the  night  of  the 
President's  assassination  ;  I  was  in  bed  that 
night.  The  next  morning  I  saw  the  name 
of  "Samuel  Thomas"  entered  on  the  book; 
further  than  that  I  do  not  know.  It  was 
the  rule  of  the  house  that  the  porter  was 
never  to  allow  a  person  to  go  to  bed  without 
registering  his  name;  and  I  have  never 
known  the  rule  to  be  violated.  The  register 
does  not  show  how  long  Dr.  Mudd  remained 
at  the  house  in  December ;  the  cash-book 
would  show  that. 

[By  request  of  Mr.  EWING,  the  witness  retired  to  exam 
ine  the  register  of  the  Pennsylvania  House  for  the  name 
of  Dr.  Mudd  after  December  23d.] 

I  have  examined  the  register  from  the  last 
entry  of  Dr.  Mudd's  name  on  the  23d  of 
December,  1864,  up  to  this  month,  May,  and 
his  name  does  not  appear  at  all. 

JULIA  ANN  BLOYCE  (colored.) 

For  the  Defense,— May  20 

By  MR.  EWING. 

I  went  to  live  at  Dr.  Sam  Mudd's  on  the 
day  they  call  Twelfth  Day  after  the  Christ 
mas  before  last,  and  left  two  days  before  this 
last  Christmas.  I  used  to  cook,  and  wash, 
and  iron,  clean  up  the  house,  and  sometimes 
wait  on  the  table.  I  never  saw  Andrew 
Gwynn,  nor  any  Confederate  officers  or  sol 
diers  about  Dr.  Mudd's  house,  and  never  saw 
a  man  called  Surratt  there,  nor  heard  the 
name  mentioned. 

[A  photograph  of  John  H.  Surratt  exhibited  to  the  wit 
ness.] 

I  have  never  seen  that  man  at  Dr.  Mudd's. 
I  have  seen  Ben.  Gwynn,  but  I  did  not  see 
him  at  Dr.  Mudd's  last  year.  I  did  not  hear 
his  name  nor  Andrew  Gwynn's  mentioned. 

Dr.  Mudd  was  very  kind  to  us  all.  1  lived 
with  him  a  year,  and  he  treated  me  very 
kindly;  never  gave  me  a  cross  word,  nor  any 
of  the  rest  that  I  know  of.  I  did  not  hear  of 
his  whipping  Mary  Simms;  he  never  struck 
her  nor  any  of  the  others  a  lick,  through 
the  whole  year.  I  believe  she  left  because 
Mrs.  Mudd  told  her  not  to  go  out  walking 
one  Sunday  evening;  but  she  would,  and  the 


DEFENSE    OF    SAMUEL    A.  MUDD. 


193 


next  morning  Mrs.  Mudd  gave  her  about 
three  licks  with  a  little  switch,  but  the  switch 
was  small,  and  I  don't  believe  the  licks  could 
have  hurt  her.  The  general  opinion  of  Mary 
Simms  among  the  colored  people  is,  that 
she  is  not  a  very  great  truth-teller.  I  know 
she  is  not,  because  she  told  lies  on  me.  The 
colored  folks  think  the  same  of  Milo  Simms 
as  of  Mary;  if  he  got  angry  with  you,  he 
would  tell  a  lie  on  you  to  get  satisfaction. 

I  never  heard  Dr.  Mudd  say  any  thing 
against  the  Government  or  Mr.  Lincoln. 

On  the  day  I  left,  two  days  before  Christ 
mas,  Dr.  Mudd  went  away  early  in  the  morn 
ing,  and  his  wife  told  me  he  was  gone  to 
Washington  to  get  a  cooking  stove.  Since  I 
left  Dr.  Mudd's,  I  have  been  living  in  Bryan- 
town  with  Mr.  Ward. 


MUDD'S  WHEREABOUTS,  MARCH  1-5. 

FANNIE  MUDD. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

Dr.  Samuel  A.  Mudd,  the  accused,  is  my 
brother.  I  know  of  my  brother's  where 
abouts  from  the  1st  to  the  4th  of  March  last. 
On  the  1st  of  March  my  sister  was  taken 
sick,  and  on  the  morning  of  the  2d  my  father 
sent  to  her  room  early  to  know  how  she 
felt.  She  sent  him  word  that  she  felt  very 
badly,  and  was  afraid  she  had  the  small-pox. 
My  father  immediately  dressed,  and  went  for 
my  brother,  and  he  came  there  with  my 
father  and  took  breakfast  with  us.  On  the 
3d,  my  brother  came  in  between  11  and  12 
to  see  my  sister,  and  took  dinner  with  us. 
As  he  had  not  his  medical  case  with  him, 
having  come  in  from  the  barn,  where  he  had 
been  stripping  tobacco,  he  went  home  for  it, 
and  came  back  with  the  medicine  for  my 
sister.  On  the  4th  he  came  to  dinner  again, 
and  on  the  5th,  Sunday,  he  was  at  my  father's 
in  the  evening,  in  company  with  Dr.  Blan- 
ford,  my  brother-in-law. 

1  did  not  see  my  brother  on  the  1st  of 
March,  but  I  am  pretty  sure  he  was  at  home. 
I  am  confident  my  brother  was  not  absent 
from  home  at  any  time  between  the  1st  and 
5th  of  March.  We  live  very  near,  about 
half  a  mile  distant,  and  we  go  backward  and 
forward  sometimes  twice  a  day. 

I  was  in  the  habit  of  visiting  my  brother's 
house  very  frequently  last  summer,  and  the 
summer  previous.  I  never  saw  or  heard  of 
John  H.  Surratt  being  there.  I  heard  of 
Booth  being  there  once,  probably  in  Novem 
ber;  but  1  did  not  see  him.  Since  this  trial 
commenced,  I  have  heard  that  he  was  there 
twice. 

I  knew  of  three  gentlemen,  Mr.  Jerry 
Dyer,  Andrew  Gwynn,  and  Bennett  Gwynn, 
sleeping  in  the  pines  near  my  brother  s  house, 
in  1861 ;  I  do  not  think  they  secreted  them- 


selves  except  during  the  night.  Mr.  Andrew 
Gwynn  was  an  intimate  friend  of  ours,  very 
fond  of  music,  and  he  spent  two  evenings 
with  us  at  my  father's.  He  left  that  year,  and 
I  have  not  seen  him  since,  nor  have  I  heard 
of  his  being  at  my  brother's.  I  never  heard 
of  a  Captain  Perry,  or  Lieutenant  Perry,  or 
of  any  Confederate  soldiers  being  about  my 
brother's  house.  My  father's  house  is  about 
thirty  or  thirty-two  miles  from  Washington. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  think  I  heard  of  Booth  being  at  my 
brother's  in  the  early  part  of  last  November. 
I  do  not  know  personally  that  my  brother 
was  at  home  on  the  1st  of  March;  I  did  not 
see  him  at  all  on  that  day.  I  do  not  know 
the  officer  who  enrolled  the  names  of  those 
in  our  neighborhood  subject  to  the  draft,  nor 
did  I  say  any  thing  at  all  to  the  enrolling 
officers  as  they  passed  by,  or  were  at  my 
father's  house. 

By  MR.  EWING. 

I  know  that  it  was  the  1st  of  March  that 
my  sister  was  taken  sick,  because  it  was  Ash 
Wednesday,  and  it  is  customary  with  Catho 
lics  to  go  to  church  that  day,  if  possible,  to 
prepare  for  the  penitential  season  of  Lent, 
and  we  were  Catholics,  and  were  particularly 
anxious  to  go  to  church.  My  sister  attempted 
to  rise  that  morning,  but  was  not  able;  and  a 
second  time  attempted,  but  was  obliged  to  re 
main  at  home. 

I  did  not  meet  Booth  when  he  was  at  Bryan- 
town,  but  I  saw  him  in  church;  he  sat  in  Dr. 
Queen's  pew,  with  his  family. 

MRS.  EMILY  MUDD. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

I  live  at  the  house  of  Mr.  Henry  L.  Mudd, 
the  father  of  the  prisoner,  Samuel  A.  Mudd. 
On  Thursday,  the  2d  of  March,  Dr.  Samuel 
Mudd  was  summoned  very  early  in  the 
morning  to  see  his  sister,  who  was  sick,  and 
again  on  the  next  day.  the  3d.  He  came 
over  about  12  o'clock  that  day  and  dined 
with  us,  and  finding  his  sister  much  worse, 
he  came  over  again  in  the  evening  and 
brought  her  some  medicine.  He  was  there 
again  on  Saturday  to  see  her,  and  took  din 
ner  again ;  and  I  think  he  was  there  on 
Saturday  afternoon.  I  am  positive  of  the 
dates  from  the  fact  that  the  1st  of  March, 
when  the  prisoner's  sister  was  sick,  was  Ash 
Wednesday,  and  she  could  not  go  to  church. 
I  am  sure  that  Dr.  Samuel  Mudd  was  not 
from  home  at  any  time  between  the  1st  and 
the  5th  of  March;  he  was  attending  his  sick 
sister,  and  was  not  absent  from  home  at  all. 

I  know  Andrew  Gwynn,  but  have  not  seen 
him  since  the  fall  of  1860.  He  was  in  the 
habit  of  visiting  the  house  of  Dr.  Mudd's 
father  before  that,  but  has  not,  to  my  knowl- 


194 


THE    CONSPIRACY    TRIAL. 


edge,  been  there,  or  at  the  house  of  Di. 
Samuel  A.  Mudd,  since  1861.  I  never  knew 
John  H.  Surratt,  or  Lieutenant  Perry,  or 
Captain  Perry,  and  never  heard  of  their  being 
at  the  house  of  Samuel  A.  Mudd ;  nor  have 

1  ever  known   or   heard  of  parties   of  Con 
federate  officers  or  soldiers  being  about  Dr. 
Samuel  Mudd's  house,  and   I  have  been  in 
the  habit  of  going  to  his  house  very  frequently 
since  1861.     I  saw  Dr.  Mudd  on  his  way  home 
from  Bryantown  on  the  Saturday  afternoon 
after  the   assassination  of  the  President;  no 
one  was  with  him. 

Gross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  saw  him  going  by  the  road  by  his  house 
toward  Bryantown,  1  expect,  between  1  and 

2  o'clock  ;  perhaps  a  little  earlier ;  and  I  saw 
him  coming  back  perhaps  about  4;  but  I  am 
not  positive  as   to  the  time.     On  the  2d  of 
March,  he  came   to   his  father's  very  early, 
before  breakfast;  I  do  not  know  wlfat  time 
he  left;   I  was  sick  and  did  not  see  him  any 
more;  on   Friday    I  did   not  see  him   until 
noon,  at  dinner.     I  did  not  see  him  at  all  on 
Wednesday,  the  1st    of  March,  and  do   not 
know  of  myself  whether  he  was  abroad  or 
at  home  on  that  day,  nor  do  I  know  whether 
he  was  at  home  or  abroad  after  he  left  his 
sister  early  in  the  morning  of  the   2d,  until 
the  next  day  at  noon. 

BETTY  WASHINGTON  (colored.) 

Recalled  for  the  Defense. — June  5 

By  MR.  EWING. 

I  went  to  live  at  Dr.  Samuel  A.  Mudd's 
house  the  week  after  Christmas,  and  was 
there  in  March  last;  I  know  that  on  the 
1st  of  March,  Ash  Wednesday,  Dr.  Mudd 
was  down  at  the  tobacco  bed,  getting  it 
ready  to  sow;  he  was  there  until  about  dinner 
time,  and  he  and  Mr.  Blanford  came  in  to 
dinner  together.  He  was  out  all  that  after 
noon,  but  was  at  home  at  night.  I  saw  him 
the  next  morning,  Thursday,  at  breakfast 
time,  and  we  cut  brush  all  that  day,  and  he 
was  there  working  with  us  all  day  ;  he  laid 
the  brush  off  for  us  to  dig  up.  On  Friday,  he 
was  stripping  tobacco  in  the  barn.  I  saw  him 
on  Friday  morning,  but  not  at  noon  ;  he  went 
from  the  barn  over  to  his  father's  to  dinner, 
and  came  back  after  we  had  been  to  supper. 

I  saw  him  on  Saturday  at  breakfast,  and 
after  dinner  he  went  to  the  post-office  at 
Beantown,  and  came  back  at  night.  On 
Sunday  he  went  to  church,  and  came  home 
Sunday  night. 

The  tobacco  bed  that  he  was  fixing  on  the 
let  of  March  is  down  close  to  Mr.  Sylvester 
Mudd's.  I  was  working  on  the  bed  with  him. 

I  never  heard  of  John  H.  Surratt  while  I 
lived  at  Dr.  Mudd's.  If  I  had  heard  talk 
of  his  name,  I  should  know  it.  I  know  Mary 
Simms  who  used  to  live  at  Dr.  Mudd's ;  all  the 


colored  folks  about  tnere  gave  her  a  bad 
name  as  a  story-teller.  Dr.  Mudd  treated  me 
very  well;  1  have  no  fault  to  find  with  him. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

Dr.  Mudd  took  breakfast  at  home  on 
Thursday,  and  he  was  there  all  day  when 
we  were  cutting  brush;  he  was  on  one  side 
of  the  path,  and  we  were  on  the  other.  I 
know  he  was  at  home  to  breakfast,  dinner, 
and  supper  on  Thursday. 

By  MR.  EWING. 

Q.  Are  you  certain  that  Dr.  Mudd  took 
breakfast  at  his  house  on  the  day  after  Ash 
Wednesday  ? 

Assistant  Judge  Advocate  BINGHAM  objected 
to  the  question  as  not  proper  re-examination. 
The  cross-examination  had  been  confined  to 
matters  brought  out  on  the  examination  in 
chief,  and  therefore  this  kind  of  re-examina 
tion  was  not  proper. 

Mr.  EWING  desired  to  put  the  question  in 
order  to  explain  a  seeming  contradiction,  and 
have  the  matter  fully  understood. 

The  Commission  sustained  the  objection. 

FRANK  WASHINGTON  (colored.) 
Recalled  for  the  Defense. — June  5. 

It  is  a  little  better  than  twelve  months 
since  I  went  to  live  at  Dr.  Mudd's  house.  I 
was  there  last  March,  and  I  know  that  on 
the  1st,  which  was  Ash  Wednesday,  he  was 
out  working  with  me  on  the  tobacco  bed 
from  morning  until  night;  the  next  day  he 
was  about  the  tobacco  bed  in  the  morning 
and  afternoon.  On  Friday  he  went  to  the 
bed  again,  but  it  commenced  raining.  He 
then  went  to  the  barn  to  strip  tobacco,  and 
he  staid  in  the  barn  until  12  o'clock,  when 
he  went  to  his  father's.  On  Saturday  it 
rained  pretty  hard,  and  he  kept  the  house  all 
day  until  pretty  late  in  the  evening,  when, 
he  rode  up  to  the  post-office  at  Beantown. 
On  Sunday  he  went  to  church. 

On  Ash  Wednesday  night,  and  every  other 
night,  Dr.  Mudd  was  at  home ;  Dr.  Mudd 
was  also  at  home  Tuesday,  the  last  day  of 
February,  and  I  saw  him  on  Sunday  night, 
the  5th ;  he  was  at  home. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATK 

BlNGHAM. 

I  always  got  up  before  Dr.  Mudd,  and  I 
saw  him  go  out  of  the  house  early  on  Thurs 
day  morning ;  I  was  working  with  him  all 
that  day.  He  ate  his  breakfast  before  I  had 
mine,  and  he  ate  his  dinner  and  supper  at 
home. 

JOHN  F.  DAVIS. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

I  live  in  Prince  George's  County,  Md.,  about 
a  mile  from  the  line  of  Charles  County.  1 


DEFENSE    OF    SAMUEL   A.    MUDD. 


195 


know  that  Dr.  Samuel  Mudd  was  at  home  on 
the  3d  of  March,  for  I  went  down  to  see  him, 
and  carried  him  half  a  dozen  small  perch. 
I  eaw  him  at  his  house,  within  live  miles  of 
Bryantown,  at  about  10  o'clock  on  Friday 
morning,  the  3d  day  of  March. 

THOMAS  DAVIS. 

Recalled  for  the  Defense. — June  5. 
By  MR.  EWING. 

Since  the  9th  of  January  I  have  been  living 
at  Dr.  Samuel  Mudd's.  I  recollect  that  he 
was  at  home  on  the  1st  of  March,  because  I 
was  sick,  and  he  came  into  my  room  to  see 
me.  He  told  me  he  could  not  give  rne  any 
meat  on  that  day  because  it  was  Ash  Wednes 
day,  the  beginning  of  Lent.  He  came  up  to 
see  me  twice  on  that  day,  in  the  forenoon  and 
afternoon,  and  on  the  2d  of  March  he  came 
to  see  me  twice,  morning  and  evening.  On 
the  3d  I  saw  him  three  times,  and  on  the  4th 
and  5th  he  came  to  see  me  as  usual,  in  the 
forenoon  and  afternoon  of  each  day. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  was  sick  and  confined  to  my  bed  at  Dr. 
Mudd's  only  once  last  winter;  I  was  taken 
sick  on  the  22d  of  February,  and  remained 
sick  and  confined  to  the  house  until  about 
the  15th  of  March;  this  is  the  same  sickness 
that  I  swore  to  before  the  Court  a  week  ago. 

By  MR.  EWING. 

Dr.  Mudd  was  up  to  see  me  every  day  dur 
ing  the  whole  of  that  time,  and  generally 
twice  a  day.  Dr.  Mudd  did  not  own  a  two- 
horse  buggy  or  rockaway  while  I  lived  there; 
he  had  no  buggy  at  all. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

He  had  his  father's  carriage  once  on  the 
17th  of  April.  I  do  not  know  what  he  had 
while  I  was  sick ;  I  was  not  out  to  see. 

By  MR.  EWING. 

His  father's  carriage  is  a  two-horse  one. 
It  is  a  close  carriage;  not  a  very  heavy  one. 
There  is  one  seat  inside,  and  one  outside  for 
the  driver;  I  think  it  has  a  window  in  each 
side,  and  opens  at  the  side  with  a  door. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

It  has  curtains.  I  said  it  was  a  rockaway, 
but  I  spoke  of  it  first  as  a  "  carriage ;  "  I  never 
heard  it  called  a  rockaway. 

HENRY  L.  MUDD,  JR. 

For  the  Defense. — June  6. 

By  MR.  EWING. 

Of  the  whereabouts  of  my  brother,  Samuel 
A.  Mudd,  from  the  1st  to  the  5th  of  March, 
I  can  state  that  on  the  1st  of  March  I  did  not 
Bee  him,  though  he  certainly  was  at  home. 


'  On  the  2d  of  March  he  was  at  my  father's 
house  before  breakfast,  having  come  to  see 
my  sister,  who  was  sick.  I  saw  him  again 
that  day  at  4  o'clock.  On  the  3d  of  March 
he  was  sent  for  about  10  o'clock,  and  the  boy 
found  him  in  the  barn  stripping  tobacco.  He 
came  about  half-past  11  o  clock,  remained  to 
dinner,  and  left  about  2  o'clock;  I  am  very 
positive  of  this.  In  the  afternoon  of  the 
same  day  he  came  again,  and  brought  some 
medicine.  I  saw  him  again  that  evening 
when  I  went  over  to  his  house  to  fetch  some 
medicine.  On  the  4th  of  March  he  was 
again  at  my  father's  house  to  see  my  sister. 
On  the  5th  of  March  I  saw  him  at  church, 
and  he  dined  at  our  house.  The  distance 
from  my  father's  house  to  the  Navy  Yard 
bridge  at  Washington  is  from  twenty-seven 
to  thirty  miles. 

My  brother  has  not  owned  a  carriage  of 
any  description  since  I  have  known  him.  My 
father  does  not  own  any  buggy ;  he  owns  a 
large  two-horse,  close  carriage,  holding  four 
persons  inside,  two  on  the  driver's  seat,  and  a 
large  seat  behind.  It  is  as  large  as  any  of 
the  city  hacks,  and  very  heavy. 

Cross-examined  fry  ASSISTANT  JUDGE  ADVOCATE 
BINGHAM. 

I  distinctly  remember  my  brother  being  at 
my  father's  house  on  the  3d  of  March.  I 
was  at  the  barn  stripping  tobacco,  and  when 
I  came  to  my  dinner  my  brother  came  in  im 
mediately  afterward,  and  he  asked  for  some 
water  to  wash  his  hands;  I  noticed  they  were 
covered  with  the  gum  of  tobacco.  My  sister 
was  taken  sick  on  the  1st  of  March,  Ash 
Wednesday;  I  remember  I  went  to  church 
on  that  day. 

DR.  J.  H.  BLANFORD.      , 
'   For  the  Defense. — June  6. 
By  MR.  EWING. 

I  saw  Dr.  Mudd  at  his  house  on  the  1st  of 
March,  and  I  saw  him  at  church  on  the  5th. 
Dr.  Mudd's  father  does  not  own  a  buggy  or 
rockaway.  His  carriage  is  a  large,  close 
family  carriage;  four  seats  inside  and  two 
outside. 

Miss  MARY  MUDD. 

For  the  Defense. — June  9. 

By  MR.  EWING. 

On  Ash  Wednesday,  the  1st  of  March,  I 
was  making  preparations  to  go  to  church, 
when  I  was  taken  very  sick.  The  sickness 
passed  off',  and  I  grew  better;  but  on  the  2d 
of  March  my  father  sent  for  Dr.  Samuel 
Mudd,  my  brother,  and  brought  him  over. 
My  father  found  him  in  bed.  He  remained 
with  us  till  7  o'clock,  and  then  returned  to 
his  own  house. 

On  Friday  morning,  the  3d  of  March, 
there  was  an  eruption  on  my  face,  and  my 
mother,  who  was  much  frightened,  sent  a 


196 


THE    CONSPIRACY   TRIAL. 


email  colored  boy  over  for  my  brother,  who 
sent  back  word  that  he  would  be  there  to 
dinner.  lie  came  between  11  and  12  o'clock 
and  dined  witli  us.  Having  come  from  the 
barn  where  he  was  stripping  tobacco  all  day, 
he  brought  no  medicine.  I  remember  he 
came  directly  into  my  room  and  washed  the 
tobacco  gum  oft'  his  hands.  He  left  at  2 
o'clock,  and  returned  at  4,  bringing  with  him 
some  medicine.  On  the  same  day  my  brother 
Henry,  late  in  the  evening,  went  over  and 
returned  with  more  medicine.  On  the  4th, 
•Saturday,  my  brother  carne  to  see  me,  and 
dined  with  us.  On  the  5th,  Sunday,  he  was 
at  our  house  in  the  evening.  On  Monday, 
the  Oth,  he  came  to  see  me  again  ;  also  on 
Tuesday,  the  7th,  and  on  Wednesday  I  was 
able  to  leave  my  room  and  did  not  need  his 
attention  any  more. 

During  this  time,  on  one  of  the  days,  a 
negro  woman  on  the  place  was  taken  very 
sick  of  typhoid  pneumonia.  My  brother 
saw  her  every  day  until  the  23d  of  March. 
That  day  I  remember  very  well,  because  we 
had  a  tornado,  and  his  barn  was  blown 
down.  After  that,  during  the  whole  of  the 
month,  I  saw  him  every  two  or  three  davs, 
or  heard  of  him. 

I  have  been  in  the  habit  of  seeing  my 
brother  every  day  or  so,  because  my  mother's 
health  is  delicate,  and  he  comes  in  frequently 
to  see  her. 

I  know  of  my  brother  going  to  Washing 
ton  on  the  23d  of  March,  in  company  with 
Lewellyn  Gardiner.  I  remember  his  being 
at  a  party  at  Mr.  George  Henry  Gardiner's 
in  January,  but  I  do  not  remember  the  date. 
His  wife  and  Mrs.  Sim  ma,  who  boards  in 
the  family,  were  also  there.  They  remained 
until  daybreak.  A  short  time  after  that,  he 
came  with  my  brother  Henry  to  Giesboro  to 
buy  some  horses.  Those  are  the  only  occa 
sions  I  know  of  his  being  away  from  home 
between  the  23d  of  December  .and  the  23d  of 
March,  and  I  never  heard  of  his  being  ab 
sent  on  any  other  occasion. 

My  brother  never  owned  a  buggy  or  car 
riage.  My  brother  has  for  the  past  year 
worn  a  drab  slouch  hat.  I  have  never  seen 
him  wear  a  black  hat  for  a  year. 

I  know  Andrew  Gwynn.  I  understand  he 
has  been  in  the  Confederate  service  since 
1861.  I  never  knew  or  heard  of  any  Con 
federate  officers,  or  soldiers,  or  citizen  Con 
federates,  stopping  at  my  brother's  house. 

I  saw  Booth  in  Dr.  Queen's  pew  at  church 
last  fall  or  winter.  It  was  the  visit  when 
he  purchased  the  horse  of  Mr.  Gardiner.  I 
do  not  know  of  Booth  having  been  at  my 
brother's  at  that  visit.  I  only  heard  of  it;  I 
did  not  hear  of  his  staying  there  over  night. 
I  never  heard  of  a  second  visit  until  since 
this  trial  commenced.  Mr.  Gardiner  does 
not  live  more  than  half  a  mile,  I  think, 
from  my  brother's.  Bryantown  is  on  the 
road  between  Dr.  Queen's  and  Mr.  Gardiner's. 
My  brother's  house  is  also  on  that  road. 


My  brother  first  went  to  St.  John's  Col 
lege  in  1849,  and  he  was  there  in  1850.  In 
1851  he  went  to  Georgetown  College.  He 
was  not  at  home  in  the  months  of  October, 
November,  and  December  of  1850,  or  Janu 
ary,  1851.  He  never  spent  any  holiday  at 
home  except  the  summer  vacation. 


IN  WASHINGTON,  MARCH  23,  1865. 

THOMAS  L.  GARDINER. 

Recalled  for  the  Defense.— May  29. 
By  MR.  EWING. 

On  the  23d  of  March  last,  Dr.  Samuel  A. 
Mudd  (the  accused)  and  myself  came  to 
Washington  together.  We  left  home  about 
8  or  9  o'clock  in  the  morning,  and  came  up 
to  attend  the  sale  of  Government  condemned 
horses,  which  we  were  told  would  take  place 
on  Friday ;  but  when  we  got  to  Mr.  Mar 
tin's,  we  heard  that  the  day  of  sale  had 
been  changed  to  Tuesday,  and  we  were  dis 
appointed  in  attending  it. 

Dr.  Mudd  said  he  wanted  to  go  over  in 
town;  so  we  left  our  horses  at  Mr.  Martin's, 
where  we  had  dined,  walked  across  the 
bridge  and  up  to  the  Navy  Yard  gate ;  then 
we  took  a  street-car  and  came  up  on  the 
avenue.  We  went  to  Mr.  Young's  carriage 
factory,  where  Dr.  Mudd  looked  at  some 
wagons,  and  then  around  to  one  or  two  liv 
ery-stables,  where  Dr.  Mudd  looked  at  some 
second-hand  wagons.  From  there  we  went 
round  on  the  island  to  Mr.  Alexander  Clark's. 
Not  finding  him  at  home,  we  went  down  to 
his  store,  staid  there  with  him  till  dark,  and 
he  closed  his  store,  when  we  returned  to  his 
house,  and  took  tea  with  him.  After  tea, 
Mr.  Clark,  Dr.  Mudd,  and  myself  went  to 
Dr.  Allen's,  remained  two  or  three  hours, 
then  returned  to  Mr.  Clark's,  and  staid  all 
night — Dr.  Mudd  and  myself  sleeping  to 
gether.  After  breakfast  next  morning,  we 
accompanied  Mr.  Clark  to  his  store,  and 
then  went  to  the  Capitol  and  looked  at  some 
of  the  paintings.  After  this,  we  took  a 
street-car,  returned  to  Mr.  Martin's  and  or 
dered  our  dinner,  after  which  we  got  our 
horses  and  returned  home.  We  were  not 
separated  at  all  during  the  whole  time;  we 
were  not  out  of  one  another's  sight,  I  am 
confident,  from  the  time  we  left  Mr.  Martin's 
till  we  returned.  We  saw  nothing  of  Booth 
while  there,  nor  did  we  go  to  the  National 
Hotel. 

I  recollect  the  contest  in  our  Congressional 
district,  in  which  Calvert  and  Harris  were  the 
rival  candidates.  Mr.  Harris  was  running 
as  a  peace  candidate;  I  do  not  know  that 
be  was  termed  a  secessionist.  Calvert,  I  un 
derstood  was  the  unconditional  Union  candi 
date.  I  can  not  say  whom  Dr.  Mudd  sup 
ported  at  that  election.  I  did  not  see  his 
;icket,  but  from  a  conversation  I  had  with 


DEFENSE    OF    SAMUEL    A.  MUDD. 


197 


him,  I  supposed  he  would  support  Mr.  Cal- 
vert.  I  understood  him  to  say  that  he  thought 
it  would  be  better  to  elect  Mr.  Calvert. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  understood  that  Calvert  was  publicly  re 
puted  to  be  a  stronger  Union  man  than 
Harris. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

I  do  not  know  that  there  were  three  can 
didates  in  the  field ;  that  Colonel  John  C.  Hol 
land  was  the  unconditional  Union  candidate  in 
that  district,  and  the  others  both  peace  can 
didates.  I  know  that  Colonel  Holland  was 
a  candidate  when  Harris  was  elected  the  last 
time. 

DR.  CHARLES  ALLEN. 

For  the  Defense. — June  6. 

By  MR.  EWING. 

I  am  acquainted  with  the  prisoner,  Samuel 
A.  Mudd.  The  last  time  I  saw  him  was  at 
my  office  in  this  city,  on  the  evening  of  the 
23d  of  March  last.  He  came  there  in  com 
pany  with  Mr.  H.  A.  Clark  and  Mr.  Gar 
diner;  the  latter  gentleman  I  had  never  seen 
before.  I  was  introduced  to  him  on  that 
evening;  I  do  not  know  his  first  name.  I 
understood  that  he  lived  in  the  same  section 
of  the  country  that  Dr.  Mudd  lived  in.  They 
came  in  about  8  o'clock,  and  remained  till  be 
tween  12  and  1  o'clock  at  night.  There 
were  several  other  gentlemen  in  my  office,  to 
whom  Mr.  Clark  introduced  Dr.  Mudd  and 
Mr.  Gardiner.  I  can  fix  the  date  of  that 
visit  from  the  fact  that  a  tornado  had  swept 
over  the  city  that  day,  unroofing  one  or  two 
houses,  and  killing  a  negro  man;  and  this 
was  spoken  of  by  us  in  the  evening;  by  ref 
erence  to  the  newspapers  I  find  that  it  was 
the  23d.  I  had  seen  Dr.  Mudd  once  before, 
in  the  early  part  of  1864,  when  Mr.  Clark 
first  introduced  him  to  me.  Those  are  the 
only  two  occasions  on  which  I  have  seen  him. 

HENRY  A.  CLARK. 

For  the  Defense. — June  6. 

By  MR.  EWING. 

In  the  latter  part  of  last  March,  Dr.  Mudd 
(the  accused)  and  Mr.  Gardiner,  a  neighbor 
of  his,  came  to  my  store  in  this  city,  between 
6  and  7  o'clock  in  the  evening,  and  went 
home  with  me,  and  took  tea  at  my  house. 
After  tea  we  went  around  to  Dr.  Allen's  office, 
and  spent  the  evening  there,  in  company  with 
a  number  of  other  gentlemen.  Mr.  Emerson 
and  Mr.  Veighmyer  were  there.  Mr.  Gar 
diner  and  Dr.  Morgan  were  there  for  a  few 
minutes,  and  I  think  Ethan  Allen,  but  am 
not  positive;  and  perhaps  Mr.  Bowman  of 
the  Bank  of  Washington;  there  were  per 
haps  ten  or  a  dozen.  We  remained  till  be 
tween  12  and  1  o'clock,  playing  cards.  Dr. 


Mudd  and  Mr.  Gardiner  went  to  my  house 
with  me;  I  gave  them  a  bed-room,  and  they 
remained  together  in  my  house,  and  went 
away  together  the  next  morning.  I  have  not 
seen  Dr.  Mudd  on  any  other  occasion  this 
year  until  yesterday. 

I  do  not  know  either  J.  Wilkes  Booth, 
John  H.  Surratt,  or  Mr.  Weichman.  No 
one  bearing  either  of  those  names  was  in 
company  with  Dr.  Mudd,  Mr.  Gardiner,  and 
myself  at  Dr.  Allen's,  at  my  house,  or  any 
where  else.  Dr.  Mudd  was  not  out  of  my 
sight  that  night  from  the  time  he  carne  into 
the  store  until  he  went  into  his  room  to  bed. 
There  were  no  strangers  about  my  house  in 
the  morning,  and  there  was  no  one  in  com 
pany  with  Dr.  Mudd  and  Mr.  Gardiner  when 
they  left.  They  came  to  my  house  on  the 
day  on  which  a  severe  storm  had  occurred, 
by  which  a  negro  boy  was  killed.  I  fix  the 
time  of  their  visit  by  this,  for  we  were  talk 
ing  about  it  at  Dr.  Allen's. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  knew  all  who  were  at  Dr.  Allen's  on 
that  evening,  but  I  can  not  recall  them.  I 
spend  the  evening  there  often,  and  am  pretty 
much  acquainted  with  the  gentlemen  that 
visit  there,  but  I  can  not  state  positively  the 
names  of  the  ten  or  a  dozen  that  were  there 
that  evening 


AT  GIESBORO  ON  APRIL  11. 


HENRY  L.  MUDD,  JR. 

For  the  Defense.— May  29. 
By  MR.  EWING. 

I  live  about  three  miles  from  Bryantown, 
and  about  three-fourths  of  a  mile  from  my 
brother,  Samuel  A.  Mudd;  I  have  lived  there 
all  my  life.  On  the  10th  of  last  April,  I  think 
it  was,  my  brother,  Samuel  A.  Mudd,  and 
myself  left  home  together  and  went  to  Blan- 
ford's,  ten  miles  from  Washington.  We  staid 
there  all  night,  and  the  next  morning  Dr. 
Blanford,  Dr.  Mudd,  and  myself  went  to 
Giesboro  to  buy  condemned  Government 
horses.  Dr.  Blanford  left  us  about  half-past 
10  o'clock,  and  went  to  Washington.  We 
remained  till  about  1  o'clock,  and  finding  no 
horses  that  suited  us,  I  proposed  to  Dr.  Mudd 
to  go  down  to  Mr.  Martin's,  near  the  bridge, 
and  get  some  dinner,  which  we  did.  Dr. 
Blanford  came  in  just  as  we  had  dined,  and 
we  all  three  returned  home.  Dr.  Mudd  and 
myself  were  not  separated  five  minutes  during 
that  visit.  We  did  not  cross  the  Eastern 
Branch,  or  come  into  Washington  or  the  Navy 
Yard,  nor  did  I  see  any  thing  of  John  Wilkes 
Booth  during  that  visit.  I  know  of  but  two 
other  visits  to  Washington  made  by  my 
brother,  Samuel  A.  Mudd,  during  fast  winter 
and  spring;  the  first  on  the  23d  or  24th  of 


198 


THE    CONSPIRACY   TRIAL. 


December,  in  company  with  Jerry  Mudd,  and 
the  second  visit  with  Thomas  L.  Gardiner, 
about  the  23d  of  March.  With  the  exception 
of  those  visits  to  Washington,  and  when  he 
went  to  Giesboro  with  me,  my  brother  has 
been  at  home,  and  I  saw  him  nearly  every 
day,  at  least,  four  times  a  week,  at  home  and 
at  church.  A  part  of  last  year  I  was  at 
college;  I  came  home  about  the  29th  of 
June 

I  do  not  know  of  any  Confederate  soldiers 
or  other  persons  having  been  about  my 
brother's  house  since  my  return  from  college, 
nor  did  I  ever  see  or  hear  of  John  H.  Surratt 
being  there.  My  father  is  a  large  land-owner 
in  the  county,  and  the  farm  which  my  brother, 
the  prisoner,  holds  is  between  four  and  five 
hundred  acres. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

My  father  gave  that  farm  to  my  brother. 
He  has  no  deed  for  it,  but  he  can  get  one 
any  time  he  wants  it.  I  suppose  he  is  a  tenant 
of  my  father's. 

By  MR.  EWING. 

I  always  understood  that  my  father  set 
apart  that  farm  for  my  brother;  it  is  known 
as  my  brother's  farm,  and  goes  by  that  name. 
I  know  also  that  six  years  ago  my  father 
bought  the  land  on  which  Mr.  John  F.  Hardy 
now  lives  for  my  brother,  Dr.  Samuel  Mudd. 
The  house  was  burned  down,  and  a  small 
one  built,  which  did  not  suit  my  brother, 
and  he  sold  the  farm  to  Mr.  Hardy,  making 
the  agreement,  and  selling  and  receiving  the 
proceeds,  although  my  father  held  the  title. 

Recalled  for  the  Defense. — May  31. 
By  MR.  EWING. 

I  did  not  say  in  my  previous  examination 
that  my  brother  was  a  tenant,  if  that  means 
that  he  pays  rent.  I  keep  my  father's  ac 
counts,  and  I  know  very  well  that  my  brother 
has  never  paid  the  first  cent  of  rent  for  the 
farm  since  he  has  been  on  it,  nor  any  of  the 
produce  of  the  farm;  it  was  treated  as  my 
brother's  farm  in  every  respect. 

EGBERT  F.  MARTIN. 

For  the  Defense. — May  29. 

By  MR.  EWING. 

I  am  acquainted  with  the  prisoner,  Dr. 
Samuel  A.  Mudd,  with  his  brother,  Henry  L. 
Mudd,  and  Dr.  Blanford.  Dr.  Mudd  was  at 
my  house,  on  the  23d  of  March  last,  with 
Mr.  Lewellyn  Gardiner;  they  took  dinner,  and 
left  their  horses,  then  went  over  the  river, 
returned  next  day  to  dinner,  and  got  their 
horses.  He  was  at  my  house  again  in  April, 
in  company  with  his  brother,  Henry  Mudd. 
They  had  their  horse  put  away,  and  took 
dinner. 

Dr.  Blanford  joined  them,  perhaps  between 


3  and  4  o'clock,  T  am  not  positive,  and  they 
all  three  left  together.  They  said  they  were 
going  to  Giesboro  Point  to  buy  horses.  I 
have  no  means  of  fixing  the  date  of  this  visit 
except  from  my  book,  which  is  at  home;  but 
I  think  it  was  the  4th  of  April.  Neither 
Dr.  Mudd  nor  Dr.  Blanford  was  there,  to  my 
knowledge,  between  that  time  and  the  assas 
sination  of  the  President. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  did  not  register  Dr.  Mudd's  name  at  all ; 
but  a  man  by  the  name  of  Stewart  was  there 
that  day,  and  his  name  was  registered;  so 
that  the  book  will  show  the  date. 

Recalled  for  the  Defense. — May  30. 
By  MR.  EWING. 

Since  I  was  upon  the  stand  yesterday  I 
have  referred  to  my  register,  and  find  that  it 
was  Jerry  Mudd  that  was  at  my  house  on 
the  4th  of  April.  It  must  have  been  on 
the  llth  of  April  that  Dr.  Samuel  Mudd, 
his  brother  Henry,  and  Dr.  Blanford  were 
there;  I  know  it  from  the  fact  that,  when 
they  had  been  gone  about  half  an  hour, 
Joshua  S.  Naylor  and  Lemuel  Orme  (whose 
names  are  registered  on  that  day)  drove  up 
and  asked  if  there  was  anybody  up  from 
Charles  County,  and  I  told  them  that  Dr. 
Mudd  and  his  brother  had  just  left. 

I  saw  Dr.  Mudd  and  Jerry  Mudd  in  market 
in  Washington  on  the  24th  of  December  last. 
Dr.  Mudd  helped  me  to  sell  some  turkeys; 
it  was  a  dull  market,  and  he  said  he  thought 
he  could  do  better  than  I  was  doing ;  so  he 
stood  at  the  stand  while  I  went  round  the 
market,  but  when  I  came  back  I  do  not  think 
he  had  sold  one.  He  was  at  my  stand  twice 
that  day.  He  inquired  of  Lucas  if  he  could 
carry  a  stove  down  for  him,  and  Lucas's 
replv  was  that,  if  he  sold  his  poultry,  he 
would;  if  not,  he  would  have  to  take  it  over 
to  me ;  but  he  did  not  sell  his  poultry,  and 
the  stove  was  not  moved  that  day. 

Dr.  Mudd  was  at  my  house  on  the  23d  of 
March;  his  name  was  registered  on  that  day. 
He  and  Mr.  Gardiner  came  together  before 
dinner.  They  left  their  horses  there,  and 
took  them  away  the  next  day  after  dinner.  I 
do  not  know  where  they  went;  I  only  know 
they  went  across  the  river. 

Mr.  EWING.  I  now  propose  to  ask  the  wit 
ness,  what  statement  was  made  by  the  ac 
cused  to  him,  as  to  the  purpose  of  his  visit. 
Inasmuch  as  the  visit  has  to  be  explained,  I 
think,  under  the  rules  of  evidence,  that  state 
ment  is  clearly  admissible.  There  are  plenty 
of  authorities  for  it. 

Assistant  Judge  Advocate  BINGHAM.  I 
undertake  to  say  that  there  is  not  any  au 
thority  in  the  world  for  it,  because  that  is  not 
in  issue. 

Mr.  EWIXG.  It  is  in  issue  whether  he  met 
Booth  in  January. 

Assistant  Judge  Advocate  BINGHAM.     Not 


DEFENSE    OF   SAMUEL   A.  MUDD. 


199 


in  March.     This  is  in   relation  to  a  visit  of 
the  23d  of  March. 

Mr.  EWING.  It  is  in  issue  whether  Dr. 
Mudd  met  Booth  in  Washington.  We  are 
not  confined  as  to  any  particular  day  when 
the  meeting  may  have  occurred.  We  want 
to  show  that  he  could  not  have  met  Booth 
from  the  23d  of  December  down  to  the  time 
of  the  assassination  of  the  President;  and,  in 
order  to  show  that,  we  prove  his  presence  at 
home  during  all  that  period,  except  the  visit 
to  Giesboro,  and  the  one  night  he  went  to 
the  party;  and  we  follow  it  by  proof  as  to 
what  the  visits  were  for,  and  as  to  what  he 
did,  who  was  with  him,  and  where  he  went. 
Now,  as  a  part  of  the  proof,  to  show  the  pur 
pose  of  the  visits  to  Washington,  his  declara 
tions  as  to  the  purpose  of  the  visit  made  at 
the  time  of  making  the  visit  are  admissible, 
under  the  rules  of  evidence.  I  will  read  to 
the  Court  an  authority  on  that  subject,  from 
2  Russell  on  Crimes,  p.  750:  "Generally 
speaking,  declarations  accompanying  acts  are 
admissible  in  evidence  as  showing  the  nature, 
character,  and  objects  of  such  acts.  Thus, 
where  a  person  enters  into  land  in  order  to 
take  advantage  of  a  forfeiture  to  foreclose  a 
mortgage,  to  defeat  a  disseizin,  or  the  like, 
or  changes  his  actual  residence,  or  is  upon 
a  journey,  or  leaves  his  home,  or  returns 
thither,  ....  his  declarations  made  at 
the  time  of  the  transaction,  and  expressive 
of  its  character,  motive,  or  object,  are  re 
garded  as  verbal  acts,  indicating  a  present 
purpose  and  intention,  and  are  therefore  ad 
mitted  in  proof  like  any  other  material  acts." 
The  authority  is  exactly  in  point.  The  fact 
of  the  journey  is  legitimately  given  in  evi 
dence  by  us;  and  so  the  object  of  the  journey 
is  legitimate;  and,  in  connection  with  the  ob 
ject  of  the  journey,  his  declarations  as  to  its 
purpose  are  admissible. 

Assistant  Judge  Advocate  BINGHAM.  The 
great  trouble  is  that  the  gentleman  does  not 
read  enough.  I  would  yield  the  point  if  he 
could  show  in  the  book  from  which  he  has 
read,  or  in  any  other  book,  an  authority  say 
ing  that  proof  of  the  kind  now  offered  was 
admissible,  when  the  point  to  which  it  re 
lated  was  not  in  issue.  The  rule  on  the  sub 
ject  is,  that  if  the  prosecution  prove  the 
declarations  and  acts  of  the  accused,  he  may 
prove  all  that  he  said  on  those  occasions,  as 
part  of  the  res  gestce;  but  there  is  no  such 
thing  in  the  text  he  read,  or  in  any  other,  as 
that  a  man  may  prove  what  he  said  at  an 
other  time  and  place  not  involved  in  the 
issue,  and  about  which  there  has  been  no 
proof  offered  by  the  prosecution.  The  gen 
tleman  says  he  wants  to  prove  what  the 
prisoner  said,  as  to  the  object  of  this  jour 
ney,  in  order  to  show  that  he  was  not  coining 
to  see  Booth.  I  suppose,  if  on  the  23d  of 
March,  he  said  he  was  not  hunting  Booth, 
and  they  prove  that,  and  if,  when  he  got 
back  home  he  said  he  did  not  see  Booth, 


and  they  prove  that,  it  would  be  proof  of 
that  fact.  What  authority  is  there  for  say 
ing  that  that  can  be  done?  There  is  no  book 
in  the  world  that  says  so.  The  text  read  by 
the  gentleman  does  not  mean  any  such  thing. 
If  the  gentleman  can  show  me  a  text  which 
says  that  a  defendant  may  prove  an  act  that 
has  not  been  put  in  issue  by  the  accusation, 
about  which  no  proof  has  been  offered  by 
the  prosecution,  and  prove  all  he  said  on  that 
occasion,  I  shall  yield.  The  same  book  from 
which  the  gentleman  read  lays  down  the  law, 
that  the  party  shall  not  introduce  his  own 
declarations  on  his  own  motion.  The  text 
is,  page  750  :  u  Hearsay  evidence  of  a  fact  is 
not  admissible;"  and  it  goes  on  to  say,  "there 
are,  however,  certain  instances,  which  it  will 
be  the  object  of  this  section  to  point  out, 
where  hearsay  evidence  is  admissible."  But 
when  ?  "  When  hearsay  is  introduced,  not 
as  a  medium  of  proof  in  order  to  establish  a 
distinct  fact,  but  as  being  in  itself  a  part  of 
the  transaction  in  question." 

Now,  is  this  transaction  in  question  f  How 
is  the  fact  whether  Dr.  Mudd  came  to  Wash 
ington  on  the  23d  of  March  or  not  in  ques 
tion  ?  Is  it  so  on  the  charge  and  specifi 
cation  ?  Not  at  all.  Is  it  so  by  any  proof 
offered  by  the  prosecution  ?  Not  at  all.  Our 
proof  is,  that  in  January  he  was  here,  and 
had  an  interview  with  Booth,  and  he  is  not 
to  disprove  that  by  his  mere  declarations; 
and  this  testimony  is  offered  for  no  other 
purpose  whatever.  It  is  not  to  explain  any 
transaction,  because  there  is  no  transaction 
calling  for  explanation.  The  fact  that  he 
came  here  on  the  23d  of  March  is  not  in 
evidence  against  him — it  is  not  a  matter  of 
accusation  against  him — it  is  not  in  ques 
tion  ;  and  therefore  I  say  the  declarations 
of  that  date  proposed  to  be  offered  in  evi 
dence  are  his  declarations,  offered  in  evidence 
on  his  own  motion,  for  no  purpose  except  to 
disprove  the  testimony  offered  against  him 
by  the  prosecution;  that  he  had  an  interview 
with  Booth  in  January;  and  there  is  no  text 
of  any  law-book  any  where  that  says  he  can 
make  evidence  in  that  way  by  his  own  decla 
rations. 

The  Commission  sustained  the  objection. 

WITNESS.  My  hotel  is  about  one  hundred 
yards  from  the  Navy  Yard  bridge,  Eastern 
Branch  bridge,  and  persons  going  from  Bry- 
antovvn  to  Washington  pass  by  it.  I  have  a 
post-office  there.  I  have  not  seen  Dr.  Mudd 
at  my  house,  on  his  way  to  or  from  Washing 
ton,  since  the  24th  of  December,  except  on 
those  two  occasions.  I  do  not  recollect  his 
stopping  there  on  December  24th,  but  I  saw 
iim  in  market.  I  attend  market  pretty  reg 
ularly,  and  am  not  at  home  much.  I  sup 
pose  I  would  recollect  if  he  had  stopped  there 
at  any  other  time;  I  can  not  say  positively 
whether  I  have  heard  of  his  being  there,  or 
not.  I  kept  no  record  of  persons  coming  to 
ny  house  until  the  20th  of  February. 


200 


THE  CONSPIRACY    TRIAL. 


DR.  J.  H.  BLANFORD. 

For  the  Defense.— May  29. 
By  MR.  EWING. 

I  live  about  twelve  miles  from  this  city,  in 
Prince  George's  County,  Maryland. 

On  the  llth  of  April  last,  I  accompanied 
Dr.  Samuel  A.  Mudd  and  his  brother,  Henry 
L.  Mudd,  to  Giesboro,  to  attend  a  Govern 
ment  sale  of  horses.  We  arrived  there  some  j 


24th.  I  remember  the  date  because  the  barn 
was  blown  down  while  lie  was  away,  and 
the  25th  was  a  holiday. 

I  do  not  know  John  H.  Surratt,  nor  John 
Wilkes  Booth;  I  never  heard  their  names 
mentioned,  nor  the  name  of  David  E.  llerold. 

[A  likeness  of  John  Wilkes  Booth  was  shown  to  the  wit 
ness.] 

I  never  saw  that  man  at  Dr.  Mudd's  while 
I  was  living  there.  I  was  ill  for  more  than 


the  hour  of  safeVaiTd  iTemafned  I  three  weeks  while  I  was  there,  and  Dr.  Mudd 
with  Dr.  Mudd  till  after  12  o'clock,  examin-  attended    me.     I  took   my    meals   up  stairs 


ing  horses.     They  were  very  inferior,  and  Dr. 
Mudd  did  not  purchase  any.     Having  busi- 


then,  but  when  I  was  well  I  took  them  with 
the  family,  except  when  late  on  account  of 


Washington,  I  left  Dr.  Mudd^about  ffeding   the,  h°1rses'   ?r  doing  other  things; 


half-past  12;  arranging  to  meet  him  at  3 
o'clock,  at  Mr.  Martin's,  near  the  bridge.  I 
was  with  Dr.  Mudd  all  the  time  till  half-past 
12.  I  went  to  Washington,  and  got  back  to 
Mr.  Martin's  about  half-past  2,  and  found 
Dr.  Mudd  there,  waiting  for  me.  In  about 
fifteen  minutes,  probably,  we  started  toward 
home,  and  rode  together  to  the  road  leading 
to  my  house,  when  I  went  home,  and  he 
continued  his  journey. 

His  brother  was  with  him  when  I  left  him 
at  Giesboro,  and  was  with  him  at  Mr.  Mar 
tin's  when  I  returned.  Mr.  Martin's  place 
is  on  the  other  side  of  the  Eastern  Branch, 
right  in  the  forks  of  the  road  leading  to 
Giesboro  and  the  stage  road  leading  down 
through  the  counties,  and  is  not  more  than 
fifty  or  one  hundred  yards  from  the  bridge. 
It  is  a  mile  and  a  half,  or  probably  two  miles, 
from  the  National  Hotel,  Washington. 

During  the  last  eighteen  months,  I  have 
several  times  heard  Dr.  Mudd  speak,  in  gen 
eral  terms,  of  being  dissatisfied  with  his 
place,  and  that  he  would  sell  if  an  advant 
ageous  offer  were  made  to  him;  bat  I  have 
no  knowledge  of  his  making  a  direct  offer  to 
sell  his  farm. 


MUDD'S  ABSENCE  FROM  HOME. 

THOMAS  DAVIS. 

For  the  Defense. — May  29. 

By  MR.  STONE. 

I  have  lived  at  Dr.  Samuel  Mudd's  since 
the  9th  of  January  last,  working  on  his 
farm.  I  have  been  on  the  plantation  all  the 
time,  with  the  exception  of  one  night  some 
time  in  January.  Dr.  Mudd  has  been  absent 
from  home  only  three  nights  during  that 
time ;  one  night  at  a  party  at  George  Henry 
Gardiner's,  and  the  other  times  in  Washing 
ton.  It  was  on  the  26th  of  January  that  he 
went  to  Mr.  Gardiner's  ;  his  family  accom 
panied  him,  and  they  returned  a  little  after 
sunrise.  The  next  time  he  was  from  home 
was  on  the  23d  of  March,  when  he  went  to 
Washington  with  Mr.  Lewellyn  Gardiner  to 
buy  some  horses.  They  came  back  on  the 


then  I  took  them  by  myself.  I  saw  Dr. 
Mudd  every  day  during  all  the  while  I  lived 
there,  except  the  times  I  have  mentioned, 
when  he  was  absent. 

I  was  at  home  on  Saturday,  the  15th  of 
April,  and  saw  two  horses  there,  and  heard 
that  tvyo  men  were  there;  but  I  did  not  see 
them;  I  was  working  in  the  field.  The  men 
left,  as  near  as  I  can  say,  between  3  and  4 
o'clock  in  the  afternoon.  I  was  there  also 
on  the  following  Friday,  at  work  on  the 
farm.  Some  soldiers  came  to  the  house  on 
that  day,  and  wanted  to  see  Dr.  Mudd.  He 
was  at  his  father's,  and  I  went  for  him.  I 
told  him  some  soldiers  were  at  the  house  and 
they  wanted  to  see  him,  and  he  came  along 
with  me  directly.  He  said  nothing  to  me 
then  about  a  boot,  nor  I  to  him.  He  came 
with  me  as  far  as  the  barn,  arid  I  went  into 
the  field,  and  he  and  Mr.  Hardy  went  on 
toward  the  house.  I  never  heard  Dr.  Mudd 
express  any  disloyal  sentimenta 

By  MR.  EWING. 

I  did  not  take  breakfast  with  the  family 
on  the  day  after  the  President's  assassina 
tion ;  I  was  "attending  to  the  horses,  and  was 
not  ready  when  the  horn  was  blown  ;  nor  did 
I  take  dinner  with  them  that  day.  All  I 
knew  about  the  two  men  having  been  there, 
was  that  one  of  them  had  a,  broken  leg,  and 
one  had  been  to  meals,  and  the  other  had  not. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

That  was  what  I  understood  about  them ; 
I  did  not  see  the  men.  When  I  came  back 
to  the  house,  about  4  o'clock,  the  horses 
were  gone,  and  as  I  did  not  hear  of  the  men 
being  there  after  that,  I  supposed  they  were 
gone. 

I  saw  Dr.  Mudd  and  his  wife  start  to  go 
to  Mr.  George  Henry  Gardiner's  on  the  night 
of  the  party;  they  walked  in  that  direction. 
Mr.  Gardiner  lives  about  three-fourths  of  a 
mile  from  Dr.  Mudd's. 

By  MR.  EWING. 

]Exhibiting  to  the  witness  a  photograph  of  John   H. 
Surratt.] 

I  never  saw  that  man  at  Dr.  Mudd's ;  I 
saw  him  at  his  own  home  about  five  years 


DEFENSE    OF    SAMUEL   A.   MUDD. 


203 


ago.     I  have  not  seen  him  since  the  9th  of 
January,  when  I  went  to  live  at  Dr.  Mudd's 

BETTY  WASHINGTON  (colored.) 

For  the  Defense. — May  27. 

By  MR.  STONE. 

I  went  to  live  at  Dr.  Samuel  Mudd's,  as 
near  as  I  can  tell,  on  the  Monday  after 
Christinas,  and  have  been  living  there  ever 
since.  I  was  a  slave  before  the  emancipa 
tion  in  Maryland,  and  belonged  to  Mrs. 
Adelaide  Middleton.  I  have  not  been  away 
from  Dr.  Mudd's  house  a  single  night  since 
I  went  to  live  there.  Dr.  Mudd  has  not  been 
away  from  home  at  night  but  three  times 
that  I  can  recollect,  but  I  can  not  say  in 
what  month. 

The  first  time,  he  and  his  wife  went  to  a 
party  at  Mr.  George  Henry  Gardiner's  ;  they 
went  about  sundown,  and  came  back  late  at 
night;  I  do  not  know  what  time.  The  next 
time  was  when  he  went  to  Giesboro  with 
his  brother,  Mr.  Henry  Mudd,  to  buy  some 
horses.  He  started  in  the  morning,  and 
came  back,  I  think,  next  day.  I  can  not 
think  what  month  it  was,  but  it  was  since 
the  last  Christmas.  The  last  time  he  went 
to  Washington,  he  started  in  the  morning, 
and  came  back  the  next  day  at  night.  I 
did  not  see  any  one  leave  the  house  with 
him,  but  I  heard  that  Mr.  Gardiner  went  to 
Washington  with  him.  I  do  not  know  who 
came  back  with  him.  I  think  it  was  in  the 
latter  part  of  the  month  that  he  went  there. 
He  was  away,  in  all,  two  whole  nights  and 
a  part  of  a  night. 

I  did  not  see  the  two  men  that  were  at  Dr. 
Mudd's  lately — Booth  and  Herold;  1  saw  one 
of  them,  the  small  one.  I  was  standing  at 
the  kitchen  window,  and  just  saw  a  glimpse 
of  him.  going  in  the  direction  of  the  swamp. 
I  did  not  see  any  one  with  him.  In  three 
or  four  minutes  after  this  Dr.  Mudd  came 
to  the  door,  and  asked  if  they  had  gone  for 
the  woman  to  clean  up  the  house.  Mrs. 
Mudd  had  started  off  a  little  girl  for  a 
woman  to  come  and  clean,  as  the  gentlemen 
had  gone. 

I  never  saw  the  small  man  before,  and  I 
did  not  see  the  large  man  at  all. 

[A  card  photograph  of  J.  Wilkcs  Booth  was  shown  to  the 

witness.] 

If  ever  I  saw  that  man  at  Dr.  Mudd's,  I 
do  not  recollect;  I  never  saw  anybody  like 
that  picture  that  I  can  recollect. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  do  not  know  where  Giesboro  is.  All 
that  I  know  about  Dr.  Mudd's  going  there 
is,  that  he  told  me  he  went  there,  and  so  did 
his  wife.  Mr.  Henry  Mudd,  his  brother, 
was  there  to  go  with  him,  and  they  started 
together  to  buy  horses ;  but  he  missed  the 
day,  and  could  not  buy  any. 

1   think   there  was  a  week,  or  two  weeks, 


between  the  time  when  he  went  to  Giesboro 
and  the  next  time  when  he  was  away  all 
night;  but  I  can  not  come  at  it  exactly. 


AT  BRYANTOWN,  APRIL  15,  16. 

GEORGE  Booz  (colored.) 

For  the  Defense. — May  27. 

I  live  with  Mr.  Henry  L.  Mudd.  I  am 
attending  to  his  lower  place,  next  to  Bryan- 
town,  above  the  road,  about  half  a  mile  from 
Mr.  John  McPherson's. 

On  Easter  Saturday,  the  15th  of  April,  I 
saw  Dr.  Mudd  at  my  house.  I  also  saw  him 
on  the  road  coming  up  from  toward  Bryan- 
town  and  going  toward  home.  The  main 
road  from  Bryantown,  up  to  the  swamps, 
goes  right  through  my  place.  You  can  go 
from  Bryantown  to  Dr.  Mudd's  either  by  con 
tinuing  along  the  main  road,  or  through 
the  plantation  path.  As  Dr.  Mudd  came 
from  Bryantown  he  passed  through  my  place 
by  the  by-road.  I  did  not  see  anyperson 
with  him,  either  walking  or  riding.  I  had 
been  in  the  swamp  looking  for  my  hogs.  I 
had  been  below,  and  had  crossed  the  main 
road,  and  met  Dr.  Mudd  coming  up  from 
Bryantown  ;  I  spoke  to  him.  That  was  be 
tween  3  and  4  o'clock  in  the  afternoon.  I  did 
not  see  any  one,  or  pass  any  one  on  either  road. 
1  did  not  see  any  person  on  horseback  stand- 
ng  in  the  swamp,  nor  any  person  at  all.  If 
anybody  had  been  standing  in  the  road,  I 
think  I  should  have  seen  him,  as  I  passed 
rom  the  big  swamp  across  the  main  road  up 
^o  my  house,  and  as  I  came  up  to  the  hill. 
I  also  passed  near  the  little  swamp,  and  could 
lave  seen  if  any  one  had  been  there. 

Dr.  Mudd  was  riding  at  his  usual  pace. 
He  very  frequently,  in  going  to  or  coming 
rom  Bryantown,  would  pass  through  our 
olace,  and  I  would  see  him.  Dr.  Mudd,  on 
his  occasion,  on  the  Saturday,  stopped  and 
spoke  a  few  words,  and  asked  me  where  I 
lad  been,  and  then  kept  on. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

When  we  met,  Dr.  Mudd  was  going  toward 
lis  home.  He  did  not  ask  me  if  I  had  seen 
anybody,  nor  did  he  say  any  thing  about 
Bryantown.  He  was  riding  a  bay  filly;  it 
-vas  his  own  horse;  I  know  it  well.  As  I 
vas  not  looking  out  for  anybody,  a  person 
night  dismount  and  I  not  notice  him.  Some 
)f  the  bushes  there  are  as  tall  as  a  man's 
lead,  or  taller. 

Recalled  for  the  Defense. — June  7. 

I  met  Dr.  Mudd  on  the  by-road  leading 
hrough  our  farm  on  the  day  after  the  assas- 
iination.  I  crossed  the  road  just  opposite  my 
louse,  and  about  three  hundred  yards  from 
lie  big  elm  on  the  side  furthest  from  Bryan- 


202 


THE   CONSPIRACY   TRIAL. 


town.  Where  I  crossed  the  road,  I  reckon  I 
can  see  a  quarter  of  a  mile  in  each  direction  ; 
that  is,  from  and  toward  Bryantown — a  plain, 
full  view.  There  was  no  horseman  on  the 
road  that  I  saw.  If  there  had  been  any  one 
going  along  the  road  with  Dr.  Mudd,  and  he 
kept  on  the  main  road,  away  from  Bryan- 
town,  when  Dr.  Mudd  turned  up  through  this 
by-road,  I  think  I  should  have  seen  him ; 
there  was  nothing  to  prevent  it. 

If  anybody  had  been  traveling  with  Dr. 
Mudd,  and  kept  on  the  main  road  when  Dr. 
Mudd  turned  in  at  the  gate,  he  would  have 
been  pretty  nearly  at  or  near  the  point  where 
and  when  I  crossed  the  main  road,  and  had 
he  been  there  I  must  have  seen  him. 

SUSAN  STEWART. 
For  the  Defense. — June  3. 

I  live  at  Mr.  John  Morris's,  about  a  mile 
from  Bryantown,  and  not  more  than  a  quarter 
of  a  mile  from  George  Booz's.  I  live  on  the 
little  cut-off  road,  leading  through  the  farm. 

I  saw  Dr.  Samuel  Mudd,  the  prisoner,  on 
Easter  Saturday,  about  3  or  4  o'clock.  He 
was  about  fifty  yards  from  the  road,  inside 
of  the  place  at  which  I  live.  When  I  saw 
him,  he  was  just  at  the  corner  of  the  barn, 
going  up  toward  Mr.  Morris's  house,  rid 
ing  very  slowly  by  himself.  I  saw  no  one 
with  him.  It  was  cloudy  and  misty,  and  I 
think  raining  a  little.  Standing  at  my  door, 
from  which  I  saw  Dr.  Mudd,  I  can  see  a 
quarter  of  a  mile  or  more  of  the  main  road. 
1  can  see  from  the  'swamp  clear  up  to  the 
tree  called  big  elm.  I  did  not  see  Dr.  Mudd 
when  he  came  out  of  the  main  road.  I  did 
not  take  particular  notice  of  the  main  road, 
but  I.  could  have  seen  very  easily  if  there  had 
been  anybody  on  the  main  road. 

I  saw  George  Booz  meet  Dr.  Mudd  that 
day  after  he  had  passed  our  house. 

By  ASSISTANT  JUDGE  ADVOCATE  BIXGHAM. 

Dr.  Mudd,  when  I  first  saw  him,  was 
opposite  the  barn,  which  is  not  more  than 
fifty  yards  from  the  main  road.  He  was 
coming  up  toward  our  house,  but  I  can  not 
say  whether  he  was  coming  from  the  direc 
tion  of  Bryantown  or  not. 

PRIMUS  JOHNSON  (colored.) 
For  the  Defense. — June  3. 

I  saw  Dr.  Samuel  Mudd  coming  from 
Bryantown  by  Mr.  Booz's  on  the  Saturday 
after  the  President  was  killed,  about  3  o'clock, 
or  a  little  after.  I  also  saw  him  when  he 
was  going  to  Bryantown;  he  was  riding  by 
himself.  "There  was  a  man  followed  Master 
Samuel,  going  toward  Bryantown,  and  this 
man  came  back  by  himself,  and  he  came 
back  before  Dr.  Samuel  Mudd,  I  reckon, 
about  half  an  hour.  Mr.  Booz's  is  about 
two  miles  from  Bryantown,  and  is  on  the 
road  between  Dr.  Mudd's  and  Bryantown. 


LEONARD  S.  ROBY. 
For  the  Defense. — June.  3. 

I  was  in  Bryantown  on  the  Saturday  after 
the  assassination  of  the  President,  about  3 
o'clock  in  the  afternoon,  and  I  staid  there 
until  night.  Before  getting  to  Bryantown,  I 
met  a  gentleman  on  the  road,  who  told  me 
of  the  assassination,  but  he  professed  not  to 
believe  it.  When  I  got  near  Bryantown,  I 
found  soldiers  stationed  two  or  three  hun 
dred  yards  from  the  village.  I  made  inquiries 
of  them,  and  learned  that  such  was  the  fact, 
and  that  somebody  that  belonged  to  the  thea 
ter  was  the  assassin  ;  but,  though  I  conversed 
with  several,  none  of  them  could  give  me 
his  name.  I  was  not  in  Bean's  store  that 
day. 

I  also  asked  several  persons,  citizens  as 
well  as  soldiers,  and  it  was  not  till  a  few 
minutes  before  I  left  in  the  evening  that  I 
received  the  information  as  to  who  was  the 
assassin,  from  Dr.  George  Mudd. 

I  know  Daniel  J.  Thomas,  and  the  repu 
tation  he  bears  for  truth  and  veracity  in  the 
neighborhood  in  which  he  lives.  It  is  such 
that  I  would  not  believe  him  under  oath. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  have  known  Mr.  Thomas  from  boyhood. 
My  attitude  toward  the  Government  during 
this  rebellion  has,  I  believe,  been  that  of  a 
loyal  citizen.  I  have  given  no  assistance  or 
counsel  to  the  enemy  in  any  way,  shape, 
or  manner.  There  are  some  acts  of  the  Ad 
ministration  I  may  have  spoken  of  not  so 
pleasantly,  but  nothing  more;  but  1  do  not 
think  I  have  said  any  thing  against  the 
Government  in  its  efforts  to  put  down  the 
rebellion. 

1  know  the  man  Boyle  who  murdered 
Captain  Watkins,  but  I  never  harbored  him 
at  my  house.  1  have  only  seen  him  once  or 
twice.  He  came  to  my  house  the  morning 
after  our  general  election,  with  some  ten  or 
a  dozen  or  fifteen.  I  live  not  far  from  the 
road,  and  many  call  after  the  election.  After 
the  general  election,  on  their  route  home 
ward,  a  party  called,  and  Boyle  was  among 
them.  1  did  not  know  him  at  that  time. 
They  staid  but  a  short  time.  When  I  heard 
his  name,  I  had  a  reason  not  to  want  him 
there,  and  I  was  not  so  particular  in  my 
treatment  toward  those  with  him,  and  they 
left  after  an  hour  or  two,  and  I  have  not 
seen  him  since. 

By  MR.  EWING. 

In  what  I  said  of  Daniel  J.  Thomas,  I 
referred  to  his  reputation  before  the  war  as 
well  as  since.  It  appears  to  me  he  is  a 
kind  of  man  who  will  imagine  things,  and 
then  bring  himself  to  believe  they  are  facts, 
and,  believing  them,  then  assert  and  stand 
to  them  to  the  last  that  they  are  facts,  and 
swear  to  them. 


DEFENSE    OF    SAMUEL   A.  MUDD. 


203 


DR.  JOSEPH  BLANFORD. 

For  the  Defense.  —  June  3. 

By  MR.  EWING. 

I  am  acquainted  with  the  routes  from 
Washington  through  Surrattsville  to  Bryan- 
town,  and  through  Surrattsville  to  Port  To 
bacco  and  Pope's  Creek.  I  have  traveled 
these  routes  several  times;  I  am  also  famil 
iar  with  the  road  from  Dr.  Mudd's  to  Bry- 
antown. 

[A  roughly- drawn  map  of  the  locality  was  offered  in  evi 
dence,  from  which  it  appeared,  by  the  explanation  of  the 
witness,  that  that  portion  of  the  road  between  the  elm- 
tree  and  the  swamp,  nearly  half  a  mile  in  length,  is  visi 
ble  from  the  houses  of  Booz  and  Murray,  and  the  whole 
of  the  road  that  branches  off  from  the  main  road,  and 
running  by  Murray  and  Booz's  houses,  is  entirely  visible 
from  those  houses.] 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Two  weeks  ago  I  made  special  inspection 
of  these  roads,  to  ascertain  what  portion  of 
the  roads  was  visible  from  the  houses  occu 
pied  by  Booz  and  Murray. 

I  know  where  the  colored  people  named 
Bloyce  live.  The  cluster  of  trees  round  the 
houses  would  obstruct  the  view  of  this  road, 
I  think.  I  do  not  think  a  person  could  see 
any  distance  from  these  houses. 

By  MR.  EWING. 

From  the  bridge,  as  indicated  on  the  map, 
to  Bryan  town,  is  not  more  than  a  quarter 
of  a  mile,  and  you  can  look  down  the  road 
right  into  the  main  street  of  the  town.  A 
person  coming  from  the  bridge  to  Dr.  Mudd's 
house  would  have  to  pass  along  the  main 
road  by  the  big  elm,  or  else  by  the  cut-off 
by  John  Murray's  house. 


E.  D.  K.  BEAN. 

For  the  Defense. — June  3. 

I  am  a  merchant  at  Bryantown.  On  the 
day  following  the  assassination,  I  believe  it 
was,  Dr.  Samuel  Mudd  bought  some  goods 
at  my  store.  I  sold  him  some  calicoes ;  this 
is  the  only  thing  that  I  particularly  remem 
ber.  When  I  first  heard  that  day  that  the 
President  was  assassinated,  I  asked  by 
whom,  and  my  impression  is  that  they  said 
it  was  by  Boyle,  the  man  who  is  said  to 
have  killed  Captain  Walking,  and  who  had 
the  reputation  in  that  neighborhood  of  being 
a  desperado. 

I  can  not  state  positively  whether  I  heard 
that  day  that  it  was  Booth  or  not.  Soldiers 
were  in  and  out  of  the  store  that  day,  and 
the  assassination  was  the  topic  of  general 
discussion. 

Q.  Did  you  have  a  conversation  with  the 
prisoner,  Samuel  A.  Mudd,  that  day,  as  to 
the  assassination  of  the  President? 

A.  The  day  I  sold  him  the  calico  I  had 
some  conversation  with  him,  and  that  cir 
cumstance  leads  me  to  think  it  was  the  day 
I  heard  of  the  assassination. 


Q.  What  was  the  conversation  ? 

A.  I  remarked  to  him  that  there  was  very 
bad  news.  "Yes,"  said  he,  "I  am  sorry  to 
hear  it." 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  witness  stating  the  conversation 
between  him  and  Dr.  Mudd ;  but,  inasmuch 
as  the  witness  had  already  partly  answered 
the  question,  lie  would  allow  the  answer  to 
stand  as  far  as  it  had  gone. 

By  MR.  EWING. 

Q.  What  else  did  Dr.  Mudd  say  in  regard 
to  the  assassination  of  the  President? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question,  and  the  Commission 
sustained  the  objection. 

Q.  It  was  from  the  conversation  you  had 
with  Dr.  Mudd  in  regard  to  the  assassination 
of  the  President  that  you  are  enabled  to  fix 
that  as  the  day  when  he  made  the  purchase 
of  calico  ? 

A.  That  led  me  to  believe  it  was  the  day, 
because  I  remember  his  remarks. 

The  distance  from  the  Eastern  Branch 
bridge  to  Surrattsville  is  about  ten  miles; 
from  Surrattsville  to  Bryantown  is  sixteen 
miles;  from  Bryantown  to  Port  Tobacco  it 
is  thirteen  miles  and  a  half. 

Gross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BINGHAM. 

I  can  not  state  positively  when  I  first 
heard  that  it  was  Booth  who  had  assassin 
ated  the  President.  I  also  heard  that  he  had 
been  traced  within  three  miles  and  a  half 
of  Bryantown,  but  I  can  not  say  when  I 
first  heard  it;  I  certainly  did  not  hear  it  on 
Saturday.  I  think  it  was  Dr.  George  Mudd 
that  told  me  on  Saturday  night  that  Booth 
was  the  murderer. 

JOHN  ACTON. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

I  live  about  three  miles  from  Bryantown, 
and  about  a  mile  and  a  quarter  from  Dr. 
Samuel  Mudd's,  on  the  road  from  his  house 
to  Bryantown.  On  the  day  after  the  Presi 
dent  was  killed,  I  saw  Dr.  Mudd  riding 
toward  Bryantown  on  a  gray  horse.  He  was 
alone  when  I  first  saw  him,  but  there  was  a 
man  overtaking  him.  In  about  three-quar 
ters  of  an  hour  I  saw  the  man  come  back. 
I  was  about  fifty  yards  from  the  road  when 
I  saw  the  man  returning;  and  I  was  there 
for  an  hour,  more  or  less,  afterward,  but  did 
not  see  Dr.  Mudd  return  toward  his  house. 
I  could  not  help  seeing  him  if  he  had  passed 
along  the  road. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BINGHAM. 

When  I  first  saw  Dr.  Mudd  and  the  man, 
they  were  a  little  way  apart,  and  the  next 


204 


THE    CONSPIRACY   TRIAL. 


thing  I  saw  the  man  get  up  to  him.  I  heard 
no  conversation  between  them.  I  did  not 
know  the  man,  nor  did  I  notice  him  much ; 
I  noticed  the  horse  more;  he  rode  a  bay 
horse.  I  can  not  swear  that  that  man 
[pointing  to  the  accused,  David  E.  Herold] 
is  the  one;  he  looks  more  like  him  than 
any  of  the  other  prisoners,  but  I  can  not  say 
that  he  is  the  man.  It  was  about  3  or  4 
o'clock  in  the  afternoon  that  I  saw  him 
come  back  alone,  on  the  same  road  that  he 
had  gone  down  on,  not  more  than  an  hour 
before,  at  most,  on  the  road  leading  to  Dr. 
Mudd's  house.  I  did  not  see  Dr.  Mudd  any 
more  that  evening. 

MASON  L.  MCPHERSON. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

I  live  within  three-fourths  of  a  mile  of 
Bryantown.  About  2  o'clock  on  the  day 
after  the  assassination  of  the  President  I 
went  to  Bryantown,  and  was  there  till  7  or  8 
o'clock  in  the  evening.  I  did  not  hear  any 
one  say  that  afternoon  who  had  assassinated 
the  President.  I  heard  that  Boyle  had  mur 
dered  the  Secretary  of  State — John  Boyle, 
the  guerrilla,  that  had  passed  through  there 
several  times,  and  had  killed  Captain  Wat- 
kins.  I  made  inquiries  of  some  of  the  sol 
diers,  but  they  could  not  tell  me  who  had 
killed  the  President.  I  asked  right  smart 
of  people,  citizens  as  well  as  soldiers,  but 
they  did  not  know.  I  was  in  Bean's  store  a 
short  time,  and  heard  the  talk  there,  but 
nobody  mentioned  the  name  of  the  assassin. 
There  were  a  good  many  people  in  town 
that  day.  On  Sunday  I  heard  who  the  sup 
posed  murderer  was. 

On  Monday  morning,  between  8  and  9 
o'clock,  I  gness,  I  saw  Lieutenant  Dana  in 
the  hotel  at  Bryantown,  in  conversation  with 
Dr.  George  Mudd.  They  were  sitting  off  to 
themselves. 

I  am  very  well  acquainted  with  Dr.  George 
Mudd's  reputation  in  the  community  as  a 
Union  man.  He  is  as  good  a  Union  man 
as  any  in  the  United  States. 

From  general  report,  I  know  the  reputa 
tion  of  Daniel  J.  Thomas.  His  reputation 
for  truth  and  veracity  in  the  community 
where  he  lives  is  not  very  good. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  am  confident  that  it  was  on  Monday 
morning  that  Lieutenant  Dana  had  this  talk 
with  Dr.  George  Mudd. 

JOHN  McPnERSON. 

For  the  Defense. — June  5. 
By  MR.  EWING 

I  was  at  Bryantown  on  Saturday,  the  day 
after  the  assassination  of  the  President,  from 


2  o'clock  till  about  6,  and  heard  the  talk 
about  the  assassination.  It  was  the  general 
topic ;  but  I  did  not  hear  who  was  the  assas 
sin.  I  do  not  recollect  that  I  made  any  in 
quiries  about  it.  On  Monday  morning  I  first 
heard  that  it  was  Booth. 

I  saw  Lieutenant  Dana  at  the  hotel  in 
Bryantown,  on  Monday  morning,  about  8 
o'clock,  in  conversation  with  Dr.  George 
Mudd.  There  were  some  three  or  four  per 
sons  in  the  room.  Dr.  George  Mudd's  repu 
tation  as  a  Union  man  is  as  good  aa  any 
man's. 

The  reputation  of  Daniel  J.  Thomas  for 
truth  and  veracity,  in  the  neighborhood  in 
which  he  lives,  is  very  bad.  I  know  that 
people  generally  think  that  he  is  not  a  truth- 
telling  man. 

I  am  acquainted  with  the  prisoner,  Dr. 
Samuel  A.  Mudd,  and  with  his  general  char 
acter,  as  a  man  of  peace,  order,  and  good 
citizenship.  He  is  considered  a  very  good 
man,  peaceable,  and  a  good  citizen. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  do  not  recollect  whether  or  not  I  have 
ever  heard  Daniel  Thomas  charged  with 
having  sworn  falsely  in  any  case;  I  have 
heard  him  spoken  of  as  rather  a  bad  man, 
and  not  apt  to  speak  the  truth. 

Q.  Do  I  understand  you  to  say,  under  the 
oath  you  have  taken,  and  with  the  knowl 
edge  which  you  have  of  Mr.  Thomas,  and 
of  his  life  and  character,  that  you  would 
not  believe  him  when  speaking  under  oath 
before  a  court  ? 

A.    I  can  not  say. 

By  MR.  EWING. 

I  do  not  think  I  have  ever  heard  of 
Thomas  being  a  witness  before  this  trial. 

PETER  TROTTER. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

I  am  a  blacksmith,  and  live  in  Bryantown. 
I  was  there  on  Saturday,  the  day  after  the 
President  was  killed.  I  heard  the  subject 
of  his  murder  talked  of  a  good  deal.  There 
were  a  good  many  soldiers  there,  some 
twenty-four  or  twenty-five;  they  were  around 
my  shop  the  whole  afternoon.  I  inquired 
of  some  soldiers  if  they  knew  who  killed 
the  President,  and  they  said  they  did  not 
know.  They  mentioned  Boyle  as  the  one 
that  had  assassinated  the  Secretary. 

I  am  acquainted  with  Daniel  J.  Thomas; 
have  known  him  for  eight  years.  His  repu 
tation  for  veracity  in  the  community  where 
he  lives  is  not  very  good.  From  my  knowl 
edge  of  his  reputation  I  would  believe  him 
under  oath  in  some  cases;  in  others  I  would 
not.  It  would  depend  upon  what  it  was 
about.  I  do  not  think  I  would  believe  him 
on  his  oath,  and  very  few  in  our  community 
would. 


DEFENSE   OF    SAMUEL   A.    MUDD. 


205 


Cross-examined  by  the  JUDGE  ADVOCATE. 

Latterly  I  have  been  loyal  to  the  Govern 
ment,  and  desired  that  it  should  succeed  in 
putting  down  the  rebellion.  At  first  I  may 
have  thought  a  good  deal  of  the  rebels,  but 
not  for  the  last  eighteen  months. 

Mr.  Thomas  is  very  unpopular  in  that 
neighborhood;  I  never  heard  him  speak 
much  about  his  loyalty,  in  any  shape  or 
form  ;  I  have  seen  him  both  ways.  Often, 
when  we  would  hear  at  Bryantown  of  some 
great  feat  that  was  done,  he  would  some 
times  think  one  way  and  sometimes  another. 
I  never  heard  him  speak  in  favor  of  the 
rebellion,  and  never,  at  any  time,  have  I 
known  him  to  be  at  all  unfriendly  to  the 
Government,  or  have  any  sympathy  with  the 
rebellion. 

Before  the  last  eighteen  months,  I  thought 
a  good  deal,  but  never  did  any  thing  un 
friendly  to  the  Government;  I  never  spoke 
much  about  my  feelings.  I  do  not  know 
that  I  should  have  thought  better  of  Mr. 
Thomas  if  he  had  been  of  my  way  of  think 
ing.  I  have  never  taken  the  oath  of  alle 
giance.  About  three  weeks  ago  I  went  to 
take  it,  but  the  Captain  had  no  blanks. 

I  never  engaged  in  blockade-running,  and 
never  crossed  the  military  lines  without  a 
permit.  If  Mr.  Thomas  was  under  oath  in 
a  court  of  justice,  I  would  believe  him  if  I 
knew  he  was  speaking  the  truth.  If  he  was 
speaking  against  the  rebels,  and  I  had  to 
rely  upon  him,  I  do  not  know  that  I  could 
bring  myself  to  believe  him. 

By  the  COURT. 

I  am  a  Scotchman,  a  British  subject,  and 
have  never  been  naturalized.  I  have  used 
the  rights  of  a  citizen,  and  have  voted.  The 
first  vote  I  gave  was  for  Buchanan  ;  after 
ward  I  did  not  vote  except  for  local  officers 
of  the  county.  I  have  not  voted  for  three 
years.  I  do  not  know  why  I  did  not  vote 
on  the  adoption  of  the  new  constitution  of 
Maryland. 

By  MR.  EWING. 

Mr.  Thomas's  reputation  for  veracity  was 
just  the  same  before  the  war  as  now.  In 
the  early  part  of  the  war  he  had  not  the 
reputation  of  being  a  loyal  man ;  I  am  sure 
he  was  not.  I  came  to  this  country  twelve 
years  ago;  am  thirty-four  years  of  age. 

JOHN  I.  LANGLEY. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

I  was  at  Bryantown  two  or  three  times  on 
Saturday,  the  15th  of  April;  it  was  sundown 
when  I  last  left.  I  heard  that  the  President 
was  assassinated,  but  did  not  hear  who  as 
sassinated  him.  I  did  not  hear  that  till  Mon 
day  morning.  There  were  not  many  citizens 
or  many  soldiers  in  the  town,  nor  was  there 


much  talk  about  the  assassination.  Some 
of  the  citizens  coming  in  heard  that  soldiers 
were  there,  and  that  martial  law  was  to  be 
proclaimed,  and  returned  to  their  homes.  I. 
first  heard  of  the  assassination  from  the 
soldiers.  I  asked  them  who  had  killed  the 
President,  and  they  said  they  did  not  know. 
I  did  not  hear  of  any  one,  supposed  to  be 
the  assassin,  being  tracked  to  near  Bryan- 
town. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  heard  that  the  soldiers  were  in  pursuit 
of  the  President's  assassin. 


MARCELLUS  GARDINER. 

For  the  Defense. — May  30. 
By  MR.  EWING. 

I  have  heard  Dr.  Samuel  Mudd,  on  several 
occasions  during  the  past  two  years,  state 
that  he  wanted  to  sell  out. 

I  was  at  Reves's  Church  in  our  neighbor 
hood  on  Easter  Sunday,  the  16th  of  April, 
following  the  murder  of  the  President.  The 
assassination  was  known  and  generally  talked 
of;  but  it  is  my  impression  that  the  name 
of  the  assassin  was  not  known.  I  saw  Dr. 
Samuel  Mudd  there  at  church. 

Q.  State  whether  you  heard  Dr.  Mudd  say 
any  thing  as  to  how  he  regarded  the  act  of 
assassination. 

Assistant  Judge  Advocate  BINGHAM.  I 
object  to  introducing  Dr.  Mudd's  declarations. 

Mr.  EWING.  I  have  brought  that  before 
the  Court  again  for  the  purpose  of  doing 
what  I  failed  to  do  yesterday,  calling^ the 
attention  of  the  Court  specially  to  the  char 
acter  of  the  declarations  that  I  expect  to 
prove. 

Assistant  Judge  Advocate  BURNETT.  It  is 
the  rule  of  military  courts,  when  the  counsel 
states  what  he  expects  to  prove  by  a  witness, 
that  the  witness  should  withdraw,  so  that  he 
may  not  be  instructed  by  the  remarks. 

[The  witness  retired  from  the  stand  and  the  court 
room.] 

Mr.  EWING.  I  expect  to  prove  that  Dr. 
Mudd  spoke  of  the  assassination  as  an  atro 
cious  and  revolting  crime,  and  a  terrible 
calamity  to  the  country ;  and  that  he  spoke 
of  it  generally  among  his  neighbors  at  the 
church  in  that  way.  I  again  call  the  atten 
tion  of  the  Court  to  the  principle  upon  which 
I  claim  that  it  is  applicable;  and  that  is, 
that  Dr.  Mudd  is  charged  with  concealment 
of  the  fact  of  those  men  having  been  there — 
a  concealment  extending  through  Sunday — 
and  that  his  declarations,  showing  his  feeling 
with  reference  to  the  crime  during  the  time 
that  they  allege  him  to  have  been  acting  as 
accessory  to  it,  are  admissible. 

The  Commission  sustained  the  objection 
of  the  Judge  Advocate. 


206 


THE  CONSPIRACY   TRIAL. 


DR.  GEORGE  D.  MUDD. 

For  the  Defense.— May  29. 

By  MR.  EWING. 

I  am  a  practitioner  of  medicine  in  the 
village  of  Bryantown,  Charles  County,  Md. 
Dr.  Samuel  A.  Mudd  was  a  student  of  medi 
cine  under  me  for  many  years.  His  father 
and  my  father  were  first-cousins.  I  know 
his  reputation  in  that  neighborhood  for  peace, 
order,  and  good  citizenship,  and  I  know  of 
none  whose  reputation  is  better.  As  a  mas 
ter,  I  have  always  considered  him  a  humane 
man  to  his  servants,  as  well  as  to  others. 
He  always,  to  my  knowledge,  clothed  and 
fed  his  servants  well,  and  treated  them  kindly, 
as  far  as  I  know. 

I  was  at  Bryantown  the  Saturday,  the 
15th,  when  the  news  of  the  assassination  of 
the  President  reached  there,  and  remained 
there  all  tfie  evening.  Lieutenant  Dana,  on 
whom  I  called  for  information,  told  me  that 
the  party  who  had  attempted  the  assassina 
tion  of  Secretary  Seward  was  named  Boyle, 
and  claimed  him  to  be  the  same  party  who 
assassinated  Captain  Watkins  of  Anne  Arun- 
del  County,  and  that  the  party  who  assas 
sinated  the  President  was  supposed  to  be  a 
man  by  the  name  of  Booth,  but  that  he 
thought  he  had  not  yet  got  out  of  Washing 
ton.  Boyle,  who  was  known  in  our  region 
of  country,  and  had  been  there  three  or  four 
weeks  before,  was  a  noted  desperado  and 
guerrilla. 

1  was  at  church  on  Sunday,  the  16th ;  it  was 
then  known  that  the  President  had  been 
assassinated,  but  no  one,  to  my  knowledge, 
supposed  that  Booth  had  crossed  the  river; 
this  at  least  was  rny  impression  ;  I  did  not 
make  much  inquiry  relative  to  it.  I  saw  Dr. 
Samuel  Mudd  at  church.  On  returning  home 
he  overtook  me,  and  I  rode  with  him  as  far 
as  his  house. 

Q.  State  whether  he  said  any  thing  to  you 
about  any  persons  having  been  at  his  house? 

The  JUDGE  ADVOCATE.  You  need  not  an 
swer  that  question.  The  Government  has  not 
introduced  the  declarations  of  the  prisoner, 
Dr.  Mudd,  at  that  time. 

Mr.  EWING.  I  propose  to  offer  that  state 
ment  for  the  purpose  of  showing  that  Dr. 
George  Mudd,  a  resident  of  Bryantown,  and 
who  1  will  prove  is  a  man  of  unquestiona 
ble  loyalty,  was  informed  by  the  prisoner  at 
the  bar  that  there  were  two  suspicious  per 
sons  at  his  house  on  Saturday  morning;  he 
told  him  of  the  circumstances  of  their  coming 
there;  expressed  to  him  a  desire  that  he 
should  inform  the  military  authorities,  if  he 
thought  it  advisable,  of  the  fact  of  their 
having  been  there;  stated  to  him  that  he 
wished  him  to  take  it  direct  to  the  mili 
tary  authorities,  and  not  tell  it  at  large 
about  the  streets,  lest  the  parties  or  their 
friends  might  assassinate  him  for  the  dis 
closure. 

I  can  imagine  no  declaration  of  a  prisoner 


more  clearly  admissible  than  this.  It  ac 
companies,  or  is  connected  with,  acts  which 
they  have  shown  of  the  preceding  day,  and 
of  subsequent  days;  it  is  a  part  of  the  very 
gist  of  the  acts  and  omissions  by  which  he 
is  sought  to  be  implicated  here,  and  to  refuse 
to  allow  him  to  show  that  he  informed  the 
Government,  through  one  of  its  most  loyal 
friends,  of  the  presence  of  these  men  in  his 
house,  and  his  suspicions  in  regard  to  them, 
would  be  to  strip  him  of  a  complete  and  ad 
missible  defense.  On  the  subject  of  such  ac 
tions — for  this  statement  was  an  act — I  read 
an  authority  from  Russell  on  Crimes,  vol.  2, 
p.  750:  "When  hearsay  is  introduced,  not  as 
a  medium  of  proof,  in  order  to  establish  a 
distinct  fact,  but  as  being  in  itself  a  part  of 
the  transaction  in  question,  it  is  then  admis 
sible;  for  to  exclude  it  might  be  to  exclude 
the  only  evidence  of  which  the  nature  of  the 
case  is  capable.  Thus,  in  Lord  George  Gor 
don's  case,  on  a  prosecution  for  high  treason, 
it  was  held  that  the  cry  of  the  mob  might  be 
received  in  evidence  as  part  of  the  transac 
tion.  (21  How.  St.  Tr.  535)  And,  generally 
speaking,  declarations  accompanying  acts  are 
admissible  in  evidence  as  showing  the  na 
ture,  character,  and  objects  of  such  acts. 
Thus,  when  a  person  enters  into  land  in 
order  to  take  advantage  of  a  forfeiture,  to 
foreclose  a  mortgage,  to  defeat  a  disseizin,  or 
the  like,  or  changes  his  actual  residence,  or 
is  upon  a  journey,  or  leaves  his  home,  or 
returns  thither,  or  remains  abroad,  or  se 
cretes  himself,  or,  in  fine,  does  any  other 
act  material  to  be  understood,  his  declara 
tions  made  at  the  time  of  the  transaction, 
and  expressive  of  its  character,  motive,  or 
object,  are  regarded  as  verbal  acts  indi 
cating  a  present  purpose  and  intention,  and 
are  therefore  admitted  in  proof,  like  any 
other  material  facts.  They  are  part  of  the 
gestce." 

In  a  note  to  this  section,  the  learned  Amer 
ican  editor  of  the  work,  Judge  Sharswood, 
gives  the  following,  among  other  decisions, 
in  this  country:  '"'Thus,  the  declarations  of 
the  prisoner  maybe  admitted  to  account  for  his 
silence  when  that  silence  would  operate  against 
him.  The  United  States  v.  Craig,  4  Wash.  C. 
3.  Rep.  729."  That  is  just  the  case  here. 
'  Whenever  the  conduct  of  a  person  at  a  given 
time  becomes  the  subject  of  inquiry,  his  expres 
sions,  as  constituting  a  part  of  his  conduct 
and  indicating  his  intention,  can  not  be  re 
jected  as  irrelevant,  but  are  admissible  as 
part  of  the  res  gestce.  Tenney  v.  Evans,  14 
New  Hamp.  353." 

It  is  to  explain  his  silence  up  to  the  time 
of  his  making  the  communication  to  Dr. 
George  Mudd,  and  to  rebut  the  evidence  of 
detective  Lloyd  as  to  his  concealment,  on  the 
Tuesday  following,  of  the  fact  that  these  two 
men  had  ever  been  at  his  house,  that  I  pro 
pose  to  introduce  that  statement  in  evidence. 
This  statement  was  made  before  he  could 
have  known  that  any  suspicions  were  directed 


DEFENSE    OF    SAMUEL    A.  MUDD. 


207 


against  him.  It  was  an  act  done  during  the 
time  of  that  silence  and  alleged  concealment, 
by  reason  of  which  they  seek  to  implicate 
him  as  an  accessory  before  and  after  the  fact 
in  the  assassination.  That  conversation  with 
Dr.  George  Mudd  accounts  for  the  silence; 
that  conversation  broke  the  silence.  If  the 
fact  of  his  having  been  silent  is  to  be  urged 
against  him,  may  not  the  fact  that  he  broke 
the  silence,  and  communicated  all  the  facts 
to  the  military  authorities,  be  introduced  in 
his  behalf?  I  hope  the  Judge  Advocate  and 
the  Court  will  mark  the  fact  that  we  do  not 
introduce  this  for  the  purpose  of  showing 
that  what  Dr.  Mudd  then  said  was  true.  We 
do  not  introduce  it  for  the  purpose  of  explain 
ing  any  thing  as  to  the  presence  of  these  men 
in  the  house,  or  the  acts  they  did  there;  we 
introduce  it  simply  to  show  that  he  commu 
nicated,  as  well  as  he  could,  to  the  military 
authorities  the  fact  of  their  presence,  and  at 
the  same  time  gave  the  explanation  of  his 
caution  then  and  his  silence  before.  No 
authority  could  be  more  direct  upon  this 
point  than  the  authority  in  United  States  v. 
Craig,  4  Washington  Circuit  Court  Reports, 
which  ia  briefly  stated  in  the  note  to  Russell, 
which  I  before  read:  "Thus,  the  declara 
tions  of  a  prisoner  may  be  admitted  to 
account  for  his  silence,  where  that  silence 
would  operate  against  him." 

The  J  UDGE  ADVOCATE.  If  the  Court  please, 
the  principle  here  is  almost  too  well  settled 
to  be  the  subject  of  discussion.  While  it  is 
competent  for  the  Government  to  give  in  evi 
dence  declarations  of  a  prisoner  on-  trial,  his 
confessions,  it  is  not  competent  for  him  to 
do  so ;  that  is  perfectly  clear.  But  when 
these  confessions  are  introduced,  he  has  a 
right  to  insist  that  the  whole  of  them  shall 
be  given.  Now,  we  have  offered  no  declara 
tions  in  evidence  which  were  made  by  the 
prisoner  at  the  baron  Sunday,  the  day  spoken 
of  by  the  witness.  The  ground,  then,  on 
which  it  is  sought  to  introduce  them  is, 
that  they  are  part  of  the  res  gestce.  The  res 
gestce  at  that  moment  had  been  completed. 
The  res  gestce  in  which  he  was  involved,  and 
which  is  the  subject  of  arraignment  on  the 
part  of  the  Government,  had  closed  the  day 
before.  That  consisted  in  hia  having  received 
and  entertained  these  men,  and  sent  them  on 
their  way  rejoicing,  having  fed  them,  having 
set  the  leg  of  the  one  whose  leg  was  broken, 
having  comforted  and  strengthened  and  en 
couraged  them,  as  far  as  his  hospitality  and 
professional  skill  could  do,  to  proceed  on  their 
journey.  That  is  the  res  gestce,  the  transac-. 
tion  on  which  the  Government  arraigns  him, 
find  that  was  complete  at  4  o'clock  on  Satur 
day  evening.  Now,  on  a  subsequent  day,  on 
Sunday,  after  carefully  reviewing  his  own  con 
duct,  he  proposes  to  introduce  a  line  of  dec 
laration  on  his  part,  nearly  twenty-four 
hours  afterward,  by  which  he  seeks  to  relieve 
himself  of  the  imputation  which  the  law  at 
taches  to  hia  previous  conduct,  which  haa 


been  the  subject  of  the  testimony  before  this 
Court.  I  say  it  is  not  competent  for  him  to 
do  so;  it  is  not  competent  for  him  to  declare 
the  motives  by  which  his  previous  action 
was  governed,  because  we  have  no  means  of 
reaching  those  motives;  we  have  introduced 
no  testimony  in  regard  to  them,  and  we  have 
no  means  of  doing  so.  The  grr^at  principle 
which  says  that  a  criminal  shall  not  manu 
facture  testimony  for  his  own  exculpation, 
intervenes  and  forbids  that  this  Court  shall 
hear  that  testimony.  Any  act  of  the  pris 
oner  he  may  introduce,  because  in  regard  to 
that  we  ourselves  can  introduce  testimony, 
but  declarations  which  may  have  been  framed 
upon  careful  review  of  his  own  conduct,  solely 
for  the  purpose  of  his  vindication  against 
the  accusation  which  he  must  have  seen 
would  arise  from  that  conduct,  can  not  be 
heard  upon  any  principle  of  testimony  what 
ever. 

Mr.  EWING.  The  Judge  Advocate  says 
that  the  transaction  was  wholly  closed.  Not 
so.  The  charge  here  is  a  charge  of  conceal 
ment,  among  others,  and  the  concealment,  as 
they  have  sought  to  prove  it,  was  a  conceal 
ment  not  only  of  their  presence  while  they 
were  in  the  house,  but  a  concealment,  ex 
tending  until  Tuesday  or  Friday,  of  the  fact 
of  their  having  been  there.  Two  of  the 
witnesses  for  the  prosecution  who  went  there 
on  Tuesday — two  out  of  the  four — said,  upon 
their  examination  in  chief,  that  Dr.  Mudd  de 
nied  that  two  men  had  been  at  his  house. 
That  was  part  of  the  testimony  for  the  pros 
ecution.  It  was  not  irrelevant  testimony ; 
it  was  legitimately  applicable  to  this  charge 
of  concealment,  which  is  made  in  broad  and 
general  terms,  and  which  applies  as  well  to 
his  concealing  them  while  they  were  there  as 
to  his  concealing  their  course  after  they  left, 
and  the  fact  that  they  had  been  there.  In 
support  of  that  charge  of  concealment,  aa  I 
said  before,  they  have  introduced  testimony 
that  he  denied  on  Tuesday  that  they  had 
been  there,  and  now  they  propose  to  exclude 
us  from  proving  that  he  informed  the  Gov 
ernment  on  Sunday  that  they  had  been  there. 
It  would  be  most  unjust  to  exclude  it,  and 
contrary  to  the  authorities  which  I  have 
cited,  one  of  which  is  explicitly  and  clearly 
in  point. 

The  JUDGE  ADVOCATE.  If  the  gentleman 
will  frame  hia  question  so  as  to  bring  out 
simply  the  conduct  of  the  party  in  the  act  he 
did,  I  shall  not  object;  but  I  must  object  to 
hia  declarations. 

Mr.  EWING.  The  question  has  been  asked. 
I  can  not  prove  how  he  informed  the  Gov 
ernment  without  proving  the  words  he  used. 
If  the  witness  were  the  Judge  Advocate 
General,  I  could  not  prove  that  Dr.  Mudd 
had  informed  him  of  their  presence  there 
without  proving  what  he  said  to  him. 

Assistant  Judge  Advocate  BURNETT.  The 
question  could  certainly  be  asked,  "  Did  Dr. 
Samuel  A.  Mudd  direct  you  to  go  to  the 


208 


THE    CONSPIRACY   TRIAL. 


authorities,  and  inform  them  that  these 
parties  had  been  there?" 

Mr.  EWIXG.  I  claim  more  than  that;  I 
claim  the  whole  statement. 

The  Commission  sustained  the  objection  of 
the  Judge  Advocate. 

By  MR.  EWIXG. 

Q.  State  whether  you  communicated  to  the 
military  authorities  in  Bryantown  the  fact 
of  any  suspicious  persons  having  been  at 
the  house  of  Dr.  Samuel  A.  Mudd  on  Satur 
day. 

A.  I  did  to  Lieutenant  Dana,  who  was  the 
principal  in  command  of  the  military  there 
at  that  time. 

Q.   When  did  you  communicate  it  to  him? 

A.   I  think  it  was  on  Monday  morning. 

Q.  What  statement  did  you  make  to  him  ? 

A.  I  stated  to  him  that  Dr.  Samuel  A. 
Mudd  had  informed  me  that  two  suspicious 
parties  came  to  his  house  a  little  before  day 
break  on  Saturday  morning;  and  that  one 
of  them  had,  as  he  said,  a  broken  leg,  which 
Dr.  Samuel  Mudd  bandaged;  that  they  were 
laboring  under  some  degree  of  excitement — 
more  so,  he  thought,  than  should  arise  from 
a  broken  leg;  that  these  parties  stated  that 
they  came  from  Bryantown,  and  were  inquir 
ing  the  way  to  the  Rev.  Dr.  Wilmer's;  that 
while  there  one  of  them  called  for  a  razor 
and  shaved  himself,  thereby  altering  his  ap 
pearance;  that  he  improvised  a  crutch  or 
crutches  for  the  broken-legged  man,  and 
that  they  went  in  the  direction  of  Parson 
Wilmer's. 

I  also  told  the  officer  that  Dr.  Samuel 
Mudd  went  from  his  house  with  the  younger 
of  the  two  men  to  try  and  procure  a  carriage 
to  take  them  away  from  his  house;  that  he 
went  down  the  road  toward  Bryantown  and 
failed  to  get  one,  and  that  they  left  his  house 
on  horseback.  I  told  him  that  one  bone  of 
the  man's  leg  was  broken,  said  by  him  to 
have  been  by  a  fall  from  his  horse.  All  this 
information  I  received  from  Dr.  Samuel 
A.  Mudd. 

When  I  was  leaving  Dr.  Samuel  Mudd,  I 
told  him  I  would  mention  the  matter  to  the 
military  authorities  at  Bryantown,  to  see  what 
could  be  made  of  it.  He  told  me  he  would  be 
glad  if  I  would  ;  but  that,  if  I  could  make  the 
arrangements,  he  would  much  prefer  that  he 
be  sent  for,  and  that  he  would  give  every  in 
formation  in  his  power  relative  to  it;  that, 
if  it  became  a  matter  of  publicity,  he  feared 
for  his  life,  on  account  of  guerrillas  that 
might  be  infesting  the  neighborhood. 

Q.  By  whose  authority  did  you  make  the 
communication  to  him  ? 

A.  The  mentioning  of  that  matter  to  me, 
or  any  other  matter  bearing  on  an  assassina 
tion,  particularly  such  an  assassination  as 
the  country  and  the  world  now  mourn,  was 
my  warrant  and  authority  from  him,  or  any 
body  else  who  knew  me. 

Q.  Did  you  make   any  other  communica 


tion  to  any  other  military  authorities  of  the 
facts  stated  to  you  by  Dr.  Samuel  A.  Mudd? 

A.  Yes,  sir.  After  that,  I  was  sent  for  to 
my  house,  I  think,  on  Tuesday  afternoon. 
There  were  four  detectives,  who  asked  me  to 
go  up  in  a  room  with  them.  They  there 
questioned  me  very  particularly  relative  to 
this  affair.  I  stated  to  them  what  I  have 
already  stated  here;  and  upon  rny  inability 
to  answer  all  their  questions,  they  ordered 
their  carriage  and  asked  me  to  direct  them 
the  way  to  Dr.  Samuel  Mudd's  house.  I 
accordingly  went  with  them  to  Dr.  Samuel 
Mudd's  house.  Dr.  Samuel  Mudd  was  not 
in  the  house.  I  was  outside  of  the  door,  and 
saw  him  coming,  and  told  him,  as  he  entered 
the  house,  that  the  detectives  had  come  there 
for  the  purpose  of  ascertaining  the  particulars 
relative  to  that  matter  which  he  had  spoken 
to  me  about,  and  that  I  had  made  the  state 
ment  to  the  military  authorities  which  he 
had  made  to  me  on  Sunday,  and  that  they 
were  up  there  for  the  purpose  of  making 
special  inquiry  in  reference  to  it.  I  had 
already  stated  to  the  detectives  that  I  felt 
confident  the  Doctor  would  state  the  matter 
just  as  I  had  stated  it  to  them,  and  would 
not  and  did  not  stay  in  there  during  their 
examination. 

Q.  Can  you  name  the  officers  that  went 
with  you? 

A.  Lieutenant  Lovett,  John  Lloyd,  Gavacan, 
an  Irishman,  and  Williams  was  the  fourth. 

After  their  conversation  with  Dr.  Samuel 
Mudd,  I  think  just  before  they  got  into  their 
conveyance,  they  asked  me  if  1  could  direct 
them  the  way  to  Parson  Wilmer's.  It  was 
then  nearly  night.  I  told  them  I  certainly 
vould,  and  turning  to  Dr.  Samuel  Mudd, 
who  was  standing  outside  the  door,  I  asked 
lim  what  was  the  best  road  to  Parson  Wil- 
ner's,  which  he  told  me,  and  also  stated  that 
:here  was  a  bad  bridge  on  that  way,  which 
I  remember  very  well. 

Before  we  got  to  the  main  road  leading  to 
Bryantown,  these  officers  concluded,  in  con 
sequence,  it  seems,  of  my  stating  to  them  that 
t  was  very  little  out  of  the  way,  to  go  back 
y  Bryantown  to  Parson  Wilmer's — to  go 
that  way,  being  a  much  better  road,  as  I 
thought.*  Nothing,  to  my  knowledge,  was 
said  by  either  of  those  officers  about  Dr. 
Samuel  Mudd  having  denied  that  the  two 
men  had  been  at  his  house. 

Q.  Did  you  have  any  conversation  with 
Dr.  Samuel  Mudd  at  the  church,  or  hear 
lis  conversation,  as  to  what  he  knew  of  the 
assassination  ? 

A.  No,  sir;   I  heard — 

Assistant  Judge  Advocate  BINGHAM.  You 
iced  not  state  any  thing  you  heard  him  say 
here. 

Mr.  EWIXG.  I  think  it  admissible,  as  ex- 
>lanatory  of  the  conduct  of  the  accused 
luring  the  very  .time  of  the  occurrence  of 
,he  offenses  charged — because,  as  I  said  be- 
bre,  one  of  the  offenses  charged  is  conceal- 


DEFENSE    OF    SAMUEL    A.   MUDD. 


209 


ment,  which  relates  beyond  that  Sunday — as 
showing  his  frame  of  mind,  his  information, 
his  conduct. 

Assistant  Judge  Advocate  BINGHAM.  If 
the  Court  please,  that  is  not  the  point  here. 
Supposing  the  declaration  to  be  that  he  did 
not  know  any  thing  about  them;  the  gentle 
man  claims  here  to  prove,  on  his  own  motion, 
the  declarations  of  Dr.  Mudd  on  Sunday  at 
Church.  If  we  had  introduced  any  declara 
tions  of  Dr.  Mudd  at  that  time  and  place,  I 
admit  the  well-known  rule  of  law  is  that 
whatever  he  said,  and  all  that  he  said  at 
that  time,  is  admissible  on  his  motion ;  what 
we  did  not  give,  he  would  have  a  right  to 
give;  but  I  deny  that  there  is  any  authority 
for  introducing  testimony  of  this  sort  as  to 
his  declarations  at  that  time  about  this  trans 
action.  That  is  the  question  now.  The 
gentleman  read  a  while  ago  from  a  text  that 
everybody  is  familiar  with,  which  has  rela 
tion  to  the  declarations  of  third  persons  not 
parties  to  the  record.  There  is  not  one  single 
line  in  that  text  which  he  read  which  sustains 
any  position  he  assumes  here  in  regard  to 
this  matter.  I  desire  to  read  the  rule  that 
does  apply  in  regard  to  the  prisoner  on  trial 
and  his  declarations — Wharton's  American 
Criminal  Law,  vol.  1.,  p.  358,  sec.  699:  "De 
clarations  made  by  a  prisoner  in  his  own 
favor,  unless  part  of  the  res  gestce,  are  not 
admissible  for  the  defense.  Thus,  on  an  in 
dictment  for  larceny,  the  defendant  can  not 
give  in  evidence  his  declarations,  at  the  time 
of  the  arrest,  of  his  claims  of  ownership  in 
the  property  taken;  and  on  an  indictment 
against  a  prisoner  for  having  in  his  posses 
sion  coining  tools,  with  intent  to  use  them, 
he  can  not  give  in  evidence  his  declaration 
to  an  artificer,  at  the  time  he  employed  him 
to  make  such  instruments,  as  to  the  purpose 
for  which  he  wished  them  made.  One  in 
dicted  for  murder  can  not  give  in  evidence 
his  own  conversations  had  after  going  half 
a  mile  from  the  place  of  murder;  and  so, 
too,  when  a  prisoner,  in  conversation  with  a 
witness,  admitted  the  existence  of  a  particular 
fact,  which  tended  strongly  to  establish  his 
guilt,  but  coupled  it  with  an  explanation 
which,  if  true,  would  exculpate  him,  it  was 
held  that  the  accused  could  not  show  that 
he  had  made  the  same  statement  and  expla 
nation  to  others." 

So  it  goes  on  all  the  way  through.  That 
is  the  law  in  regard  to  the  matter.  The 
man's  declarations  at  the  time  he  committed 
that  murder,  being  a  part  of  the  transaction, 
were  admissible;  but  after  he  had  gone  half 
a  mile  they  were  inadmissible.  Here  is  a 
party  charged  with  harboring,  concealing, 
and  comforting  a  man,  knowing  him  to  be 
the  murderer  of  the  President  of  the  United 
States.  What  he  said  in  connection  with 
the  fact  of  his  harboring  and  concealing 
him  at  the  time  to  these  parties,  he  has  a 
right  to  prove,  because  we  have  brought  out 
that  evidence  ourselves.  If  he  said  any  thing 

14 


in  addition  to  what  we  have  proved,  he  has 
a  right  to  bring  it  out.  Everybody  knows 
that.  But  we  have  introduced  no  evidence 
whatever  of  what  he  said  on  Sunday  at 
church.  If  we  had  introduced  any  evidence 
of  that  sort,  I  admit  that,  on  the  principles 
I  have  before  stated,  the  accused  would  have 
a  right  to  give  in  evidence  all  that  he  said 
at  that  time  and  place;  but  we  have  not 
offered  any  such  evidence.  If  he  is  allowed 
to  introduce  his  declarations  on  Sunday 
in  regard  to  that  transaction,  and  all  that 
he  said  then — because  the  question  implies 
that  the  witness  is  to  tell  all  he  did  say — 
then  he  is  to  be  allowed  to  introduce  every 
declaration  he  may  have  made  from  that 
Sunday  to  this  day,  to  everybody,  and  at 
every  place ;  and,  as  I  have  before  stated  to 
the  Court,  on  that  subject,  the  law  has 
hedged  itself  about  so  that  criminals  shall 
not  make  evidence,  at  their  pleasure,  in  their 
own  behalf,  and  adduce  it  in  court  to  excul 
pate  themselves  from  crime.  If  there  were 
such  a  rule  as  that,  there  would  be  an  end 
to  the  administration  of  justice,  provided  the 
courts  should  give  credence  to  such  testi 
mony. 

Mr.  EWING.  I  wish  to  call  the  attention 
of  the  Court  specially  to  the  fact  that  the 
declaration  as  to  which  I  am  now  inquiring 
was  made  during  the  time  of  the  alleged 
commission  of  the  offense  of  concealment. 
The  offense  of  concealment,  as  charged,  and 
as  attempted  to  be  sustained  by  the  proof  on 
the  part  of  the  Government,  was  a  conceal 
ment  after  the  fact  of  the  persons  having  been 
there,  and  of  the  route  which  they  took ;  in 
other  words,  a  concealment  after  their  de 
parture  as  well  as  during  their  stay.  Ac 
cording  to  the  theory  of  the  prosecution,  he 
was  committing  that  offense  during  all  the 
time,  from  Saturday  till  the  following  Tues 
day;  and  I  say  his  declarations  at  the  time 
of  the  alleged  commission  of  the  offense  are 
admissible.  The  declaration  now  inquired 
about  was  on  Sunday,  showing  his  knowl 
edge  and  frame  of  mind  with  reference  to  the 
assassination,  and  therefore  I  think  it  ad- 
nissible.  I  assure  the  Court  that  I  do  not 
wish  to  take  up  its  time  by  pressing  upon 
it  irrelevant  or  inadmissible  testimony;  and 
if  I  seem  pertinacious,  it  is  only  because  I 
think  we  have  a  right  to  show  what  is  here 
offered.  I  ask  the  decision  of  the  Court  on 
the  objection. 

The  Commission  sustained  the  objection 
of  the  Judge  Advocate. 

WITNESS.  I  am  acquainted  with  Daniel 
J.  Thomas.  II is  reputation  for  veracity  has 
been  bad  ever  since  I  have  known  him,  and 
I  have  known  him  since  he  was  a  boy. 
From  my  knowledge  of  his  character  for 
veracity,  I  would  not,  if  he  had  a  motive  to 
misstate  facts,  believe  him  under  oath.  I 
consider  him  an  insane  man. 

I  have  seen  him  manifest  a  sufficiently  ab 
normal  condition  of  mind  as  would  confer  in 


210 


THE    CONSPIRACY   TRIAL. 


the  courts  irresponsibility  for  a  criminal  act. 
He  is  not  always  so  insane  as  this,  however. 
There  seem  to  "have  been  exacerbations  and 
remissions  in  his  manifestations  of  insanity. 
Sometimes  I  have  met  him  when  he  was  not 
in  a  more  disordered  condition  of  mind  than 
would  indicate  eccentricity. 

By  the  COURT. 

Q.  What  is  the  form  of  insanity  under 
which  Mr.  Thomas  labors? 

A.  There  is  no  specific  form  that  I  know  of, 
except  at  times  a  peculiar  excitement  and  in 
ability  to  appreciate  matters  and  things  as 
other  people  do.  It  is  not  dementia;  it  is  not 
a  monomania;  it  is  not  what  is  called  aber 
ration  of  mind.  There  are  certain  forms  of 
insanity  which  exacerbate  and  remit,  and  are 
known  by  no  specific  name  as  any  particular 
form  of  insanity. 

Q.  Do  you  think  the  form  of  insanity  under 
which  he  is  laboring  would  lead  him  to  im 
agine  that  he  heard  a  conversation,  for  in 
stance,  that  he  never  did  hear? 

A.  I  have  seen  him  in  a  mood  of  mind 
when  I  would  not  doubt  but  that  he  would 
be  so  insane. 

Q.  Would  he  fancy  that  he  heard  some 
thing  said  that  was  not  said  ? 

A.  Yes,  sir;  I  have  known  him  to  labor 
tinder  the  most  decided  delusions  and  hallu 
cinations. 

Q.  Have  you  known  him  to  narrate  things 
which  might  have  occurred,  and  which  he 
might  have  heard,  that  to  your  knowledge 
were  purely  imaginary,  and  that  he  never  did 
hear  ? 

A.  Yes,  sir,  oftentimes. 

Q.  How  long  have  you  entertained  the 
opinion  that  Mr.  Thomas  was  not  of  sound 
mind? 

A.  I  went  to  a  family  school  in  our  neigh 
borhood  with  Mr.  Thomas  when  he  was  a 
email  boy.  I  was  his  senior,  perhaps,  four  or 
five  years.  There  was  something  very  ec 
centric  and  amusing  about  him  at  that  time, 
different  from  other  boys,  and  he  was  a  source 
of  amusement  in  the  way  of  eccentricity  to 
his  schoolmates.  Seven  or  eight  years  ago, 
or  perhaps  longer  than  that,  his  insane 
condition  of  mind  seemed  to  manifest  itself 
in  the  estimation  of  almost  everybody  in 
our  neighborhood.  The  common  expression 
was  that  Dan  Thomas  was  crazy.  I  have 
entertained  that  opinion  for  seven  or  eight 
years,  and  expressed  it  over  and  over  again 
before  the  war.  I  have  not  known  of  his 
being  objected  to  as  a  witness  before  a  court 
of  justice,  on  the  ground  that  he  was  not  of 
sound  mind,  and  I  have  known  him  to  testify 
under  oath  on  one  occasion. 

With  respect  to  the  reputation  of  Samuel 
Mudd  for  loyalty,  from  my  association  with 
him,  I  have  to  consider  him  as  sympathizing 
with  the  South.  I  never  knew,  however,  of 
any  disloyal  or  treasonable  act  of  his,  nor  did 
I  ever  know  of  his  harboring  rebels  or  per- 


j  sons  who  were  in  sympathy  with  the  South. 
j  I  have  generally  considered  him  as  very  tem- 
|  perate  in  his  discussions  and  expressions 
1  relative  to  the  war.  He  has  contended  for 
the  right  or  legality  of  secession,  but  haa 
generally  spoken  temperately,  never  using 
abusive  or  opprobrious  epithets  toward  the 
heads  of  the  Government.  In  saying  that 
he  was  very  temperate  in  this  regard,  I  must 
add,  if  I  may  be  allowed,  that  he  was  very 
much  more  so  than  many  of  the  citizens  of 
benighted  Charles  County,  in  Southern  Mary 
land. 

Q.  Were  there  not  certain  local  military  or 
ganizations  in  that  neighborhood  in  the  early 
part  of  the  war?  What  was  their  object? 

A.  There  was  an  organization  at  Port  To 
bacco,  the  object  of  which,  I  think,  was 
treasonable.  I  think  it  probable,  but  I  am. 
not  satisfied  of  that;  that  was  my  impression 
at  the  time,  though  it  was  said  it  was  for  the 
purpose  of  quelling  insurrections,  etc.,  in  the 
neighborhood.  It  may  have  been  so.  I 
have  regarded  Dr.  Samuel  Mudd,  for  several 
months  prior  to  the  fall  of  Richmond  and  the 
surrender  of  the  rebel  army  of  Lee,  as  taking 
a  very  handsome  prospective  view  of  the 
downfall  of  the  rebellion.  I  remember  ad 
ministering  an  oath  to  him  last  year,  and 
was  forcibly  impressed  with  the  respect  and 
reverence  with  which  he  took  the  oath,  mak 
ing  a  decided  contrast  from  many  others  to 
whom  I  administered  the  oath  on  that  occa 
sion;  and,  so  far  as  I  know,  he  has  abided 
the  provisions  of  that  oath. 

By  MR.  EWING. 

I  administered  the  oath  to  Dr.  Samuel 
Mudd,  if  I  remember  rightly,  when  the  sense 
of  the  people  was  taken  relative  to  the  calling 
of  a  convention  to  frame  a  new  constitution 
for  the  State  of  Maryland,  in  June  or  July 
of  last  year — I  do  not  remember — or  it  may 
have  been  earlier.  I  was  improvised  by  two 
of  the  judges  as  the  chief  judge  of  the  elec 
tion  that  day,  in  the  absence  of  the  judge. 
I  think  I  administered  the  oath  to  some  two 
hundred  that  day.  From  and  after  that  time, 
if  not  before,  he  has  spoken  of  the  downfall 
of  the  rebellion  as  being  assured. 

Recalled  for    the  Defense. — June  9. 

The  JUDGE  ADVOCATE.  This  witness  ia 
recalled  by  the  defense  to  prove  what  was 
rejected  the  other  day  by  the  Court  on  ob 
jection — the  declarations  made  by  the  pris 
oner,  Dr.  Mudd,  on  Sunday  at  church,  in 
regard  to  the  two  suspicious  men  having 
been  at  his  house.  Although  I  think  that 
the  admission  of  such  statement  to  be  irreg 
ular,  yet  wishing  that  the  Court  shall  have 
the  benefit  of  every  thing  which  can  possibly 
aid  it  in  arriving  at  a  correct  conclusion,  I 
am  willing  that  the  statements  of  the  pris 
oner,  made  the  day  after  these  men  had  left 
his  house,  shall  be  heard,  and  taken  for  what 
they  are  worth. 


DEFENSE    OF    SAMUEL   A.  MUDD. 


211 


WITNESS.  I  had  very  little  conversation 
with  Dr.  Mudd  at  church.  He  remarked 
that  he  regarded  the  assassination  of  the 
President,  to  use  his  own  expression,  as  a 
most  damnable  act.  He  overtook  me  on  the 
road  after  church,  and  stated  to  me  that  two 
suspicious  persons  had  been  at  his  house; 
that  they  came  there  on  Saturday  morning  a 
little  while  before  daybreak;  that  one  of 
them  had  a  broken  leg,  or  a  broken  bone  in 
the  leg,  which  he  bandaged;  that  they  got 
while  there  something  to  eat;  that  they 
seemed  laboring  under  some  degree,  or  prob 
ably  quite  a  degree,  of  excitement — more  ex 
citement  than  probably  should  necessarily 
result  from  the  injury  received;  that  they 
said  they  came  from  Bryantown,  and  were  in 
quiring  the  way  to  Parson  Wilmer's;  that 
while  there  one  of  them  called  for  a  razor,  and 
shaved  himself;  I  do  not  remember  whether 
he  said  shaved  his  whiskers  or  moustache, 
but  altered  somewhat,  or  probably  materially 
altered,  his  features;  he  did  not  say  which  it 
was  that  had  shaved  himself;  that  he  him 
self,  in  company  with  the  younger  one,  or 
the  smaller  one  of  the  two,  went  down  the 
road  toward  Bryantown,  in  search  of  a  vehicle 
to  take  them  away  from  his  house;  that  he 
arranged  or  had  fixed  for  them  a  crutch  or 
crutches  (I  do  not  remember  which)  for  the 
broken-legged  man;  and  that  they  went  away 
from  his  house,  on  horseback,  in  the  direc 
tion  of  Parson  Wilmer's.  I  do  not  think  he 
stated  what  time  they  went. 

When  I  was  about  leaving  him,  he  turning 
into  his  house,  I  told  him  that  I  would  state 
it  to  the  military  authorities,  and  see  if  any 
thing  could  be  made  of  it.  He  told  me  that  he 
would  be  glad  if  I  would,  or  that  he  particu 
larly  wished  me  to  do  it;  but  he  would  much 
prefer  if  I  could  make  the  arrangement  for 
him  to  be  sent  for,  and  he  would  give  every 
information  in  his  power  relative  to  the  mat 
ter;  that,  if  suspicions  were  warrantable,  he 
feared  for  his  life  on  account  of  guerrillas 
that  were,  or  might  be,  in  the  neighbor 
hood. 

This  was  about  half-past  11  o'clock  in  the 
forenoon,  and  when  I  parted  with  him,  I  was 
within  fifty  yards  of  his  house. 

As  I  left  Dr.  Samuel  Mudd,  I  went  toward 
Bryantown.  I  dined  at  his  father's  house 
that  day,  and  on  my  way  toward  Bryantown 
I  stopped  to  see  a  patient,  and  it  was  night 
fall  before  I  got  to  the  village  of  Bryantown. 
What  Dr.  Samuel  Mudd  had  told  me  I  com 
municated  to  the  military  authorities  at  Bry 
antown  next  morning. 

BENJAMIN  GARDINER. 

For  the  Defense. — June  5. 

By  MR.  EWING. 

1  saw  Dr.  Samuel  Mudd  at  church  on  the 
Sunday  after  the  assassination.  I  saw  him 
in  conversation  with  his  neighbors  before  the 


service  commenced,  which  usually  begins 
about  10  o'clock. 

Q.  Will  you  state  whether  or  not  Dr. 
Samuel  Mudd  there  mentioned  any  thing 
about  two  suspicious  persons  having  been  at 
his  house  on  Saturday  morning? 

Assistant  Judge  Advocate  BINGHAM.  I 
object  to  Dr.  Mttdd  giving  his  declarations, 
what  he  said  on  Sunday  morning  at  church. 

Mr.  EWING.  It  is  like  the  evidence  of  his 
informing  Dr.  George  Mudd  of  the  presence 
of  those  suspicious  persons  at  his  house, 
which  the  Court  refused  to  allow  to  be  given 
in  evidence;  and  which,  for  the  reasons  that 
I  then  very  fully  stated,  I  then  thought,  and 
still  think,  a  most  important  item  of  testi 
mony,  and  one  most  clearly  admissible. 

Assistant  Judge  Advocate  BINGHAM.  I 
have  heretofore  stated  to  the  Court  the 
ground  of  the  objection.  It  is  this:  that  it 
is  the  declaration  of  the  prisoner  himself,  at 
a  time  and  place  about  which  the  prosecu 
tion  has  given  no  evidence  at  all ;  to-wit,  his 
declarations  on  Sunday  at  church. 

Mr.  EWING.  But  it  is  during  the  alleged 
commission  of  the  crime  of  concealment,  and 
it  is  evidence  of  his  having  broken  that  si 
lence,  for  which  they  propose  to  convict  him 
of  complicity  in  the  crime. 

Assistant  Judge  Advocate  BINGHAM.  There 
is  no  allegation  of  time  in  the  charge  or  speci 
fication  that  is  important.  The  matter  of 
time  becomes  important  by  the  evidence,  and 
the  evidence  of  the  prosecution  has  not  gone 
to  any  thing  he  said  or  did  on  Sunday. 

Mr.  EWING.  But  the  evidence  of  the  prose 
cution  has  gone,  with  one  witness,  to  the  fact 
of  his  having,  as  late  as  Tuesday,  concealed 
the  fact  of  the  presence  of  two  suspicious 
persons  at  his  house. 

Assistant  Judge  Advocate  BINGHAM.  The 
evidence  has  gone  to  Tuesday  as  to  what  he 
said. 

Assistant  Judge  Advocate  BURNETT.  As 
to  his  misstating  the  facts — 

Mr.  EWING.  As  to  his  concealing  the  fact 
and  denying  it. 

Assistant  Judge  Advocate  BINGHAM.  As 
to  what  he  said  ;  and  all  he  said  on  Tuesday 
at  that  time  and  place  of  course  is  admissi 
ble  ;  but  that  is  not  Sunday. 

The  Commission  sustained  the  objection. 

Recalled  for  the  Defense. — June  9. 

The  JUDGE  ADVOCATE.  This  witness  ia 
here  to  prove  the  declarations  made  at  church 
by  the  prisoner,  Dr.  Mudd,  on  the  Sunday 
after  the  assassination.  The  statement  is  al 
lowed  for  the  reason  stated  with  respect  to 
the  testimony  of  the  previous  witness. 

By  MR.  EWING. 

I  had  heard  on  Saturday  evening  of  the 
assassination,  but  it  was  in  such  a  way  that 
I  did  not  believe  it.  As  I  got  to  church  on 
Sunday  morning,  I  saw  the  people  collected 
together  in  the  church-yard  talking  in  appar- 


212 


THE    CONSPIRACY    TRIAL. 


ently  earnest  conversation.  It  turned  out  to 
be  about  the  assassination  of  the  President, 
As  I  advanced  toward  the  church,  I  happened 
to  go  where  Dr.  Samuel  Mudd  was.  I  walked 
up  to  where  he  was,  and  spoke  to  him,  and 
he  spoke  to  me.  I  asked  him  if  it  was  a  fact 
that  the  President  had  been  assassinated. 
He  then  turned  around  to  meJfrom  the  crowd 
and  said,  "  Yes,  such  seems  to  be  the  fact;  " 
and  lie  added,  "  Sir,  we  ought  to  immediately 
raise  a  home  guard,  and  to  hunt  up  all  sus 
picious  persons  passing  through  our  section 
of  country  and  arrest  them,  and  deliver  them 
up  to  the  proper  authorities ;  for  there  were 
two  suspicious  persons  at  my  house  yester 
day  morn  ing"  I  paid  no  particular  atten 
tion  to  what  he  said  about  suspicious  per 
sons,  because  since  the  war  commenced  we 
have  always  had  in  our  neighborhood  de 
serted  soldiers  constantly,  and  detectives  and 
soldiers  of  the  United  States,  and  we  could 
hardly  tell  who  they  were. 

Whether  Dr.  Mudd  said  any  thing  further 
about  the  assassination  or  not,  I  can  not  tell. 
Everybody  was  talking  about  it  until  church 
commenced,  and  I  can  not  tell  whether  he 
said  any  thing  more,  or  if  what  I  heard  was 
said  by  others. 

DANIEL  E.  MONROE. 

For  the  Defense. — June  10. 

On  Sunday,  the  16th  of  April,  I  heard  at 
Bryantown,  from  Mr.  William  Henry  Moore, 
that  the  man  who  had  assassinated  the  Presi 
dent  was  Edwin  Booth.  Mr.  Moore  had  come 
from  Bryantown  that  morning.  It  was  about 
10  o'clock  in  the  morning  that  I  heard  this. 
Mr.  Philip  A.  Lasser  and  Mr.  Warren  were 
present  when  Mr.  Moore  told  me.  I  think 
he  said  he  heard  it  from  the  soldiers.  It  was 
some  time  afterward  that  I  heard  the  assas 
sins  had  been  traced  near  Bryantown. 

I  know  Daniel  J.  Thomas  by  reputation. 
The  neighbors  generally  think  he  is  very  un 
truthful.  This  is  not  the  opinion  of  one 
party,  but  of  the  community  generally.  From 
that  reputation  I  could  not  believe  him  under 
oath. 

1  approved  of  the  efforts  of  the  Federal 
Government  in  its  suppression  of  the  rebel 
lion  under  the  Constitution  as  it  formerly 
stood.  I  did  not  approve  of  the  manner  in 
which  slavery  was  abolished.  In  the  last 
Presidential  election  I  used  my  influence  in 
favor  of  Lincoln  and  Johnson. 

JOHN  F.  DAVIS. 

Recalled  for  the  Defense. — June  6. 

I  was  at  Dr.  Samuel  Mudd's  house  on  the 
Tuesday  following  the  assassination  of  the 
President.  I  went  into  the  field  and  informed 
him  that  Lieutenant  Lovett  and  a  party  of 
soldiers  were  at  hie  house,  and  had  come  to 
see  him.  When  I  came  up  to  the  house  I 
met  Dr.  George  Mudd.  Dr.  Samuel  Mudd 


met  Dr.  George  Mudd  just  at  the  end  of  his 
kitchen. 

Q.  State  what  Dr.  George  Mudd  told  Dr. 
Samuel  Mudd. 

Assistant  Judge  Advocate  BINGHAM.  I  ob 
ject  to  the  question. 

Mr.  EWING.  May  it  please  the  Court,  one 
of  those  four  officers  who  testified,  contra 
dicting  the  others,  it  is  true,  stated  that  Dr. 
Samuel  Mudd,  on  that  visit,  denied  that  there 
had  been  any  persons  at  his  house  on  Satur 
day  morning.  We  have  proved,  in  a  round 
about  sort  of  a  way,  owing  to  the  objections 
that  were  made,  (but  still  it  is  proved,)  that 
Dr.  Samuel  Mudd  informed  Dr.  George  Mudd, 
on  Sunday,  that  there  were  two  suspicious 
persons  at  his  house  on  Saturday  morning, 
and  requested  him  to  communicate  the  fact 
to  the  military  authorities,  and  have  him  sent 
for,  if  necessary,  to  give  further  information  on 
the  subject.  One,  or  perhaps  more,  of  those 
persons  who  went  with  Lieutenant  Lovett 
spoke  of  the  fact  of  Dr.  George  Mudd  having 
a  short  conversation  with  Dr.  Samuel  Mudd 
outside  the  door,  before  Dr.  Samuel  Mudd 
saw  the  officer  and  the  detectives.  I  wish  to 
prove  by  this  witness  that  Dr.  George  Mudd's 
whole  conversation  with  Dr.  Samuel  Mudd 
was,  that,  in  pursuance  of  the  information 
which  Dr.  Samuel  Mudd  had  given  him  on 
Sunday,  and  of  his  request,  he  had  commu 
nicated  the  facts  that  Dr.  Samuel  Mudd 
stated  to  him  to  this  officer  and  the  detec 
tives,  and  that  they  had  come  for  the  purpose 
of  questioning  him  upon  the  subject.  The 
purpose  of  this  evidence  is  twofold  :  first,  to 
show  that  Dr.  Samuel  Mudd  knew  that  these 
parties  had  been  acquainted  by  Dr.  George 
Mudd  with  the  circumstance  of  those  two 
suspicious  persons  having  been  at  Dr.  Samuel 
Mudd's  house  on  Saturday  morning,  for  the 
purpose  of  showing  that  he  could  not,  after 
that,  as  a  rational  man,  have  gone  into  the 
room  and  denied  that  there  were  two  persons 
in  his  house  on  Saturday  morning ;  second, 
to  show  that  the  conversation  was  not  one 
that  was  in  any  manner  objectionable,  but, 
on  the  contrary,  in  strict  pursuance  of  the 
request  of  Dr.  Samuel  Mudd,  and  that  that 
was  all  there  was  of  it.  It  is  true,  it  is  a 
conversation  of  Dr.  George  Mudd  with  the 
accused.  I  do  not  wish  to  prove  any  thing 
the  accused  said;  I  wish  to  prove  merely 
what  Dr.  George  Mudd  stated  to  him,  to 
show  the  information  he  had  as  to  the  pur 
pose  of  this  visit,  and  as  to  the  knowledge 
of  the  visitors  with  reference  to  those  per 
sons,  before  he  entered  the  room  to  have  his 
conversation  with  them. 

Assistant  Judge  Advocate  BINGHAM.  The 
witness  is  asked  to  state  what  a  third  person 
told  the  prisoner  at  the  bar,  and  that  I  object 
to  as  utterly  incompetent. 

The  Commission  sustained  the  objection. 

WITNESS.  Dr.  Samuel  Mudd  did  not  betray 
the  least  unwillingness  to  go  to  the  house  to 
see  the  officer,  or  manifest  any  alarm. 


DEFENSE    OF   SAMUEL   A.  MUDD. 


213 


JOHN  F.  HARDY. 

For  the  Defense.— May  29. 

By  MR.  EWINQ. 

I  live  in  Charles  County,  about  two  miles 
and  a  half  from  Bryantown.  I  was  with  Dr. 
Samuel  Mudd  on  Friday,  a  week  after  the 
assassination  of  the  President;  we  dined  to 
gether  at  his  father's.  While  there  a  mes 
senger  came  for  Dr.  Samuel  Mudd  to  go 
to  his  house.  I  went  with  him,  and  met 
there  Lieutenant  Lovett  in  Dr.  Mudd's  yard. 
Dr.  Mudd  introduced  Lieutenant  Lovett  to 
me.  When  we  got  into  the  house,  Dr.  Mudd 
told  the  Lieutenant  that  there  was  a  boot 
there,  and  asked  him  if  he  wanted  it.  Lieu 
tenant  Lovett  said  he  did.  No  inquiry  had 
been  addressed  to  him  about  the  boot,  or 
any  thing  said  in  my  hearing  about  it  before 
that.  Dr.  Mudd's  wife  said  that  she  had 
found  the  boot  under  the  bed,  in  dusting  up 
the  room  a  day  or  two  after  the  men  left. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

There  was  no  word  said  about  searching 
the  house  before  Dr.  Mudd  spoke  of  the 
boot.  When  we  got  to  the  house,  I  counted 
twenty-eight  horses  belonging  to  the  soldiers. 
[  do  "not  know  what  had  occurred  in  the 
house  before  we  got  there.  I  think  it  was 
Mr.  Davis  who  sent  for  Dr.  Mudd  while  at 
his  father's. 

By  MR.  EWINO. 

Dr.  Mudd  himself  gave  the  boot  to  the 
officer.  I  do  not  think  Dr.  Mudd  had  any 
conversation  with  anybody  before  the. fact  of 
the  boot  being  there  was  mentioned  to  the 
officer. 

JANE  HEROLD 

Recalled  for  the  Defense. — June  9. 
By  MR.  EWING. 

I  live  on  Eighth  Street,  east,  in  this  city, 
not  a  hundred  yards  from  the  Navy  Yard 
gate,  and  about  a  quarter  of  a  mile  from 
the  Navy  Yard  bridge.  I  have  lived  there 
eighteen  years.  It  is  not  on  the  direct  route 
from  the  city  to  the  bridge,  but  it  is  on  one 
that  is  very  much  used. 

I  am  not  acquainted  with  the  prisoner, 
Dr.  Samuel  A.  Mudd;  I  never  heard  him 
spoken  of  in  our  house,  nor  by  my  brother. 

MRS.  MARY  E.  NELSON. 

For  the  Defense. — June  9. 

By  MR.  EWING. 

David  E.  Herold,  one  of  the  accused,  is 
my  brother.  I  never  heard  him  speak  of 
Dr.  Samuel  A.  Mudd,  and  never  heard  the 
name  mentioned  in  the  family  until  his 
arrest. 


REV.  CHARLES  II.  STONESTREET. 

Recalled  for  the  Defense. — June  10. 

By  MR.  EWING. 

In  the  year  1850,  I  was  the  President  of 
Frederick  College,  in  Frederick  City,  Mary 
land,  and  the  accused,  Samuel  A.  Mudd, 
was  a  pupil  there.  I  have  recently  seen  the 
book,  kept  by  myself,  in  which  his  name  is 
entered.  At  the  close  of  1850,  in  December, 
I  think,  I  was  transferred  to  Georgetown 
College,  and  I  am  under  the  impression  that 
he  was  there  when  I  left 

At  Frederick  College  we  had  one  princi 
pal  vacation,  commencing  in  July  and  con 
tinuing  during  August;  other  vacations  were 
only  for  a  few  days,  during  which  those 
pupils  that  resided  at  a  distance  of  a  hun 
dred  miles  or  so  from  College  did  not  go 
home. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

There  were  no  holidays  in  the  fall,  and 
only  a  few  days  recess  at  Christmas.  I  can 
not  say  certainly  that  Dr.  Mudd  was  there 
in  December.  It  was  the  rule  not  to  go 
away  during  the  temporary  vacation,  and 
pupils  could  not  go  without  the  authority  of 
the  President. 

L.  A.  GOBRIGHT. 

For  the  Defense. — June  10. 

By  MR.  EWING. 

I  am  telegraphic  correspondent  of  the  As 
sociated  Press.  I  was  at  Ford's  Theater  on 
the  night  of  the  14th  of  April,  after  the 
assassination  of  the  President,  and  heard 
some  persons  say  positively  that  it  was  J. 
Wilkes  Booth  who  was  the  assassin,  while 
others  said  they  knew  J.  Wilkes  Booth,  and 
that  the  man  who  jumped  upon  the  stage 
and  made  his  exit  differed  somewhat  in  ap 
pearance  from  Booth.  So  far  as  I  could 
ascertain,  there  did  not  seem  to  be  any  cer 
tainty  at  that  time,  and  I  was  not  thoroughly 
satisfied  in  iny  own  mind  that  night  as  to 
who  was  the  assassin. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  was  not  perfectly  satisfied  that  night 
that  it  was  J.  Wilkes  Booth  who  had  killed 
the  President.  It  was  telegraphed  over  the 
country  that  he  was  the  assassin,  but  not  by 
me;  I  could  tell  by  whom,  if  necessary. 
After  I  saw  the  official  bulletin  the  next 
morning,  I  came  to  the  conclusion  that  J. 
Wilkes  Booth  was  the  man. 

JAMES  JUDSON  JARBOE. 

For  the  Defense. — June  7. 

I  live  in  Prince  George's  County.  I  am 
usually  called  Judson  Jarboe.  I  and  my 


214 


THE    CONSPIRACY   TRIAL. 


brother,  William  Jarboe,  are  the  only  adults 
of  that  name  in  Prince  George's  County.  I 
do  not  know  and  never  saw  Dr.  Samuel 
Mudd  before  Ins  arrest.  I  saw  Mrs.  Surratt 
some  time  in  April,  since  her  arrest;  I  had 
not  seen  her  before  that  for  two  or  three 
years.  I  have  never  been  at  her  house  on 
II  Street,  nor  have  I  ever  met  her  daughter 
at  any  house  in  Washington. 

I  have  known  Mr.  Evans  for  several 
years ;  he  used  to  live  in  my  neighborhood, 
and  attend  a  Methodist  Church  there;  I  used 
to  see  him  passing.  I  have  not  seen  him 
for  a  year  or  two,  certainly,  till  two  or  three 
weeks  before  my  arrest.  I  was  standing  at 
the  corner  of  Ninth  and  G  Streets,  when 
Mr.  Evans  passed  by  me,  walking.  I  had 
not  seen  him  before,  I  think,  for  a  year  or 
two. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BiNGHAM. 

I  know  John  H.  Surratt,  but  have  not 
met  him  very  often.  I  met  him  on  Seventh 
Street,  in  this  city,  I  believe,  some  time  in 
March  last.  It  was  at  the  restaurant  nearly 
opposite  Odd  Fellows  Hall.  There  were 
several  gentlemen  with  Surratt.  I  just  spoke 
to  him,  passed  the  time  of  day,  and  passed 
on.  I  do  not  know  the  persons  who  were 
with  him.  I  do  not  know  John  Wilkes 
Booth.  I  have  seen  David  E.  Ilerold ;  I 
recognize  him  among  the  prisoners.  He 
was  riot  with  Surratt  when  I  saw  him  at 
the  restaurant.  I  have  not,  to  my  knowl 
edge,  met  Surratt  since.  Before  that  I  passed 
Surratt  on  the  road  some  time  last  fall ;  he 
was  riding  alone. 

I  was  arrested  on  the  15th  of  April.  I 
do  not  know  that  I  have  been  charged  with 
any  disloyal  conduct  down  in  Maryland, 
jaor  do  I  know  for  what  I  was  arrested.  On 
the  night  I  was  arrested,  I  was  asked  some 
questions  by  Major  Wooster,  at  Fort  Baker, 
I  think.  He  asked  me  about  a  man  by  the 
name  of  Boyle,  and  if  I  had  not  harbored 
him.  I  told  him  I  had  not.  Boyle,  he  said, 
was  charged  with  assassination  and  horse- 
stealing.  I  think  he  said  Boyle  had  killed 
a  Captain  Watkins. 

I  knew  Boyle  when  he  was  a  boy,  but  I 
have  not  seen  him  for  four  years.  I  know 
he  was  not  harbored  on  my  premises. 

Q.  How  have  you  stood  yourself  in  rela 
tion  to  this  rebellion  since  it  broke  out? 

A.  I  do  not  exactly  understand  you. 

Q.  Have  you  made  any  declarations  against 
the  Government  of  your  country  since  this 
rebellion  broke  out? 

A.  No,  sir. 

Q.  Have  you  joined  in  any  glorification 
down  in  Prince  George's  County,  Maryland, 
over  rebel  victories  ? 

A.  No,  sir. 

Q.  Have  you  wished  for  the  success  of  the 
rebellion? 


A.  O,  no,  sir;  I  could  not  expect  that. 

Q.  Did  you  want  it,  whether  you  expected 
it  or  not  ?  Did  you  want  this  rebellion — this 
Southern  Confederacy,  if  you  please — to  tri 
umph  ? 

Mr.  EWING.  I  will  state,  to  the  witness 
that  he  has  the  privilege  of  declining  to  an 
swer.  I  do  not  care  about  interfering  further 
than  that.  What  I  called  him  to,  was  one 
single  question  of  fact. 

Assistant  Judge  Advocate  BINGHAM.  I  have 
already  stated  to  the  witness  that  if  he  thinks 
his  answer  to  any  question  will  criminate 
him,  he  can  say  so,  and  decline  to  answer. 

The  JUDGE  ADVOCATE.  I  do  not  think  a 
mere  wish  is  such  criminality  as  should  be 
protected  from  exposure. 

Mr.  EWING.  I  think  this  a  species  of  in 
quisition,  which  counsel  ought  not  to  indulge 
in. 

The  JUDGE  ADVOCATE.  Loyalty  is  a  ques 
tion  of  feeling  and  conviction,  as  well  as  of 
action. 

Assistant  Judge  Advocate  BINGHAM.  If  the 
witness  thinks  it  will  criminate  him  to  make 
a  full  and  complete  answer,  he  can  say  so. 
If  he  does  not  think  it  will  criminate  him, 
he  must  answer  the  question. 

WITNESS.  I  hardly  know  what  would 
criminate  me  here. 

Q.  I  should  like  to  know  whether  it  is  your 
opinion  that  the  Southern  Confederation  was 
criminal  or  not? 

A.  I  do  not  know  much  about  it. 

Q.  Have  you  not  expressed  yourself  that 
it  was  all  right? 

A.  What  was  all  right? 

Q.  The  Southern  Confederacy  and  the  re 
bellion  ? 

A.  I  do  not  think  that  I  did. 

Q.  Did  you  not  think  that? 

A.   I  think  a  good  many  things. 

Q.  State  whether  you  made  an  assault  upon 
a  man  at  the  election  about  four  years  ago, 
and  what  you  did  to  him. 

A.  Are  you  going  to  try  me  for  that? 

Q.  No ;  but  I  ask  you  the  question  ? 

A.  I  have  been  tried  for  that  same  offense 
twice. 

Q.  State  whether  you  made  an  attack, 
about  four  years  ago,  at  the  time  of  the  elec 
tion,  on  a  Union  man  down  there,  and  killed 
him. 

A.  There  was  a  pretty  smart  attack  made 
upon  me. 

Q.  What  became  of  the  man  ? 

A.  It  would  be  very  hard  for  me  to  tell 
now. 

Q.  Was  he  killed  or  not  at  the  time? 

A.  I  understood  that  he  was. 

Q.  Do  you  not  know  who  did  it? 

A.  No,  I  do  not  know  exactly  who  did  it. 

Q.  Do  you  know  whether  you  had  a  hand 
in  killing  him  ? 

A.  I  do  not  know.  I  have  answered  all 
the  questions  so  often  that — 


DEFENSE    OF   SAMUEL   A.  MUDD. 


215 


Q.  You  can  answer  that  question  or  let 
it  alone.  If  you  say  you  can  not  answer 
it  without  criminating  yourself,  you  need 
not 

A.  I  have  answered  that  several  times. 

Q.  You  have  not  answered  me  yet. 

A.  I  have  answered  these  questions  before 
other  courts;  I  have  been  asked  these  ques 
tions  over  and  over. 

Q.  Did  vou  kill  him,  or  did  somebody  else 
kill  him? 

A.  I  can  not  tell  you  whether  some  one 
else  did  it. 

Q.  Did  you  have  a  hand  in  it? 

No  answer. 

Q.  Where  was  it  that  this  man  was  killed? 

A.  I  understood  that  he  was  killed  at  the 
election. 

Q.  Do  you  not  know  the  man  was  killed  ? 
Were  you  not  there? 

No  answer. 

Q.  What  was  the  man's  name  that  was 
killed  ? 

No  answer. 

Assistant  Judge  Advocate  BINGHAM.  I 
shall  not  insist  on  an  answer.  If  you  do  not 
wish  to  answer,  you  need  not  answer.  It  is 
your  privilege  to  decline  or  do  so. 

By  MR.  EWING. 

Q.  Have  you  any  statement  you  wish  to 
make  in  regard  to  the  difficulty  about  which 
the  Judge  Advocate  has  been  questioning 
you  ?  If  you  have  any  thing  to  say  to  the 
Court,  say  it. 

A.  Well,  I  do  not  know.  If  the  Judge 
wants  to  know  all  the  particulars  about 
it — 

Assistant  Judge  Advocate  BINGHAM.  I  do 
not  insist  on  knowing  any  more.  You  have 
declined  to  answer,  as  is  your  right. 

WITNESS.  I  have  answered  these  questions 
before,  and  have  been  tried  for  that  thing  by 
our  courts. 

Mr.  EWING.     What  was  the  result? 

Assistant  Judge  Advocate  BINGHAM.  You 
need  not  state. 

WITNESS.     I  was  acquitted. 

Assistant  Judge  Advocate  BINGHAM.  I 
object  to  all  that. 

Mr.  EWING.  You  have  been  going  into  the 
question  whether  he  was  tried  or  not,  and  I 
ask  him  the  question  in  what  court  he  was 
tried. 

Assistant  Judge  Advocate  BINGHAM.  The 
gentleman  has  made  an  issue  with  me.  I 
deny  his  assertion. 

Mr.  EWING.  The  witness  can  state  in  what 
court  he  was  tried. 

Assistant  Judge  Advocate  BINGHAM.  He 
can  not  state  where.  I  did  not  ask  him  in 
what  court  he  was  tried.  He  chose  not  to 
answer  my  questions,  and  that  was  all. 

Mr.  EWING.  If  the  Court  please,  I  think 
the  character  of  the  cross-examination  of 
this  witness  has  been  most  extraordinary, 
catching  the  witness,  badgering  him  with 


questions,  and  snapping  him  up  when  he 
started  to  answer,  and  undertaking  to  present 
to  the  Court  the  impression  from  his  answers 
that  he  was  a  felon,  and  then  not  allowing 
the  witness  to  state  that  he  was  tried  for  the 
offense  alleged  against  him,  in  a  high  court 
of  the  country,  and  was  acquitted.  That  is 
not  fair.  And,  more  than  that,  the  gentle 
man  is  certainly  wrong.  He  drew  out  of  the 
witness,  on  cross-examination,  the  fact  that 
he  was  tried.  Now,  I  want  to  know  where 
he  was  tried.  I  want  to  know  whether  there 
was  a  solemn  inquiry  into  it;  and  whether 
he  was  tried  in  a  high  court. 

Assistant  Judge  Advocate  BINGHAM. 
Whether  I  badgered  the  witness  or  the  wit 
ness  badgered  me  and  justice  both,  is  a  ques 
tion  that  will  appear  by  the  record.  The 
point  I  make  is,  that  I  never  asked  this  wit 
ness  a  question  whether  he  was  tried. 

Mr.  EWING.     You  drew  it  out. 

Assistant  Judge  Advocate  BINGHAM.  I  did 
not  draw  it  out  of  him.  What  I  tried  to 
draw  out  of  him  was  legitimate;  but  as  the 
gentleman  chooses  to  arraign  me  here — 

Mr.  EWING.     I  take  that  back. 

Assistant  Judge  Advocate  BINGHAM.  I  am 
glad  of  it.  Holding  myself  as  the  humblest 
man  here,  I  beg  leave  to  say,  in  vindication 
of  my  conduct,  that  there  is  not  a  law  book 
on  evidence  fit  to  be  brought  into  a  court  of 
justice,  which  does  not  say  that  I  had  the 
right  to  ask  him  whether  he  had  been  guilty 
of  murder ;  and  I  am  not  going  to  let  this 
witness  go  away  from  this  court  with  the 
impression  that  I  have  invaded  any  right  of 
his.  I  had  a  right  to  ask  him  whether  he 
was  guilty  of  murder,  and  he  had  a  right,  as 
I  told  him,  to  refuse  to  answer  it  if  he  saw 
fit.  Now,  what  I  say  to  the  Court  is,  that 
he  never  answered  my  questions. 

Mr.  EWING.  You  did  not  ask  him  whether 
he  was  guilty  of  murder. 

Assistant  Judge  Advocate  BINGHAM.  J 
asked  him  whether  he  killed  a  man,  and 
whether  he  had  any  thing  to  do  with  it. 

Mr.  EWING.  That  is  not  necessarily  mur 
der. 

Assistant  Judge  Advocate  BINGHAM.  If  I 
may  ask  whether  he  was  guilty  of  murder,  I 
may  ask  him  whether  he  killed  a  man. 

Mr.  EWING.  You  did  not  ask  him  whether 
he  had  committed  murder. 

Assistant  Judge  Advocate  BINGHAM.  The 
greater  includes  the  less. 

Mr.  EWING.     But  you  asked  the  less. 

Assistant  Judge  Advocate  BINGHAM.  What 
I  say  is  that  the  law  authorized  me  to  ask 
squarely  whether  he  was  guilty  of  murder, 
and  he  is  not  to  go  out  of  court  with  the 
impression  that  I  have  invaded  any  rights  of 
his.  I  never  asked  him  about  any  trials. 
He  did  not  answer  my  questions.  He  had  a 
right  not  to  answer  them,  but  I  never  asked 
him  about  trials  at  all.  He  never  stated 
whether  he  had  killed  the  man;  he  did  not 
even  state  whether  he  had  a  hand  in  killing 


216 


THE    CONSPIRACY   TRIAL. 


the  man,  and  ne  would  not  tell  me  whether 
the  man  was  killed  at  all  or  not.  Now,  in 
that  stage  of  the  case,  upon  that  record,  the 
gentleman  proposes  to  prove  by  parol  evi 
dence  what  appears  on  record.  The  man 
has  not  admitted  yet  that  anybody  was  killed; 
and  if  nobody  was  killed,  how  could  he  be 
tried?  Then,  in  the  next  place,  if  he  was 
tried,  how  are  you  going  to  prove  it  by  pa 
rol  ?  We  have  not  the  benefit  of  any  testi 
mony  on  the  subject.  The  truth  is,  I  do  the 
witness  the  justice  to  say  that  he  has  not  an 
swered  my  question  at  all.  He  has  not  stated 
lnat  the  man  was  killed ;  he  has  stated  that 
he  understood  he  was  killed.  He  would 
not  state  that  he  himself  had  a  hand  in  it, 
and  he  would  not  state  that  he  knows  the 
man's  name.  That  is  the  way  it  stands,  and 
I  object  to  any  thing  further  about  it. 

Mr.  EWING.  He  has  stated  that  he  was 
tried,  and  I  now  ask  him  in  what  court  ? 

Assistant  Judge  Advocate  BINGHAM.  I  did 
not  ask  him  if  he  was  tried. 

Mr.  EWING.  He  stated  that  he  was  tried, 
and  now  I  ask  simply,  in  what  court?  I  do 
not  ask  the  result  of  the  investigation. 

Assistant  Judge  Advocate  BINGHAM.  If 
there  was  nobody  killed,  there  was  nobody 
hurt,  I  reckon. 

Q.  In  what  court  were  you  tried? 

A.  In  Prince  George's  County  Court. 

Q.  Were  you,  during  last  spring,  winter,  or 
fall,  in  any  house  on  H  Street,  in  the  city 
of  Washington? 

A.  I  do  not  recollect.  I  do  not  think  I  was 
in  any  house  on  H  Street,  though. 

Q.  Have  you  any  acquaintances  living  on 
H  Street? 

A.  No,  sir,  none  at  all,  that  I  know  of. 

Q.  Have  you  any  acquaintances  living  on 
H  Street,  between  Sixth  and  Seventh  ? 

A.   I  do  not  think  I  have. 

Q.  Do  you  know  in  what  part  of  the  city 
Mrs.  Surratt  lives  ? 

A.  I  do  not.  I  never  saw  her  house  in 
my  life.  I  do  not  know  any  thing  about 
Mrs.  Surratt's  residence. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Q.  You  say  you  were  tried  in  a  court. 
What  were  you  tried  for  ? 

No  answer. 

Q.  Do  you  know  what  you  were  tried 
for? 

A.  I  suppose  I  was  tried  for  what  you 
stated  awhile  ago. 

Assistant  Judge  Advocate  BINGHAM.  No, 
sir ;  I  did  not  state  it  at  all. 

WITNESS.     You  said  I  killed  a  man. 

Assistant  Judge  Advocate  BINGHAM.  No, 
I  did  not. 

WITNESS.     You  asked  me  if  I  did  not. 

Assistant  Judge  Advocate  BINGHAM.  I 
asked  you  if  you  did,  and  you  did  not  answer 
the  question.  Now  I  ask  you  for  what  you 
were  tried? 

A.  I  was  tried  in  that  case. 


Q.  What  were  you  tried  for  ?  Were  you 
tried  for  murder? 

A.  Well,  if  I  understand  the  case  aright,  I 
do  not  think — 

Q.  Were  you  charged  in  that  case  with  the 
murder  of  a  Union  man? 

A.  1  do  not  know  whether  he  was  a  Union 
man  or  not. 

Q.  Was  he  called  a  Union  man  ? 

A.  That  I  do  not  know. 

Q.  But  you  were  tried  for  murder 

No  answer. 

Q.   In  what  county  ? 

A.  Prince  George's. 

Q.  When  ? 

A.  I  do  not  recollect  exactly  when  it  was. 

Q.  Since  this  rebellion  broke  out  ? 

A.  Yes,  I  think  it  was  somewhere  about 
the  first  of  the  war. 

HENRY  BURDEN. 

For  the  Defense. — June.  8. 

By  MR.  DOSTER. 

I  know  Marcus  P.  Norton,  who  testified 
here  to-day.  His  general  reputation  for  ve 
racity  in  Troy,  New  York,  is  very  bad,  and  I 
would  not  believe  him  under  oath. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

I  live  in  Troy,  and  hold  some  valuable 
patents  for  the  manufacture  of  horseshoes, 
etc.  I  have  had  legal  controversies  about 
these  patents,  and  Mr.  Norton  was  engaged 
as  counsel  by  one  of  the  parties  opposed  to 
me  in  those  suits.  I  have  not  formed  my 
opinion  of  him  from  his  conduct  in  conduct 
ing  those  suits;  I  did  not  know  him  prior  to 
his  engaging  in  those  controversies.  When 
I  say  that  Mr.  Norton  is  not  to  be  believed 
under  oath,  I  think  I  am  expressing  what 
the  people  of  Troy  generally  think.  I  derived 
my  knowledge  of  his  character  from  testi 
mony  taken  to  impeach  him  in  a  case  tried 
in  Troy. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

A  large  array  of  witnesses  were  called,  most 
of  whom  I  knew,  to  impeach  Mr.  Norton. 
I  did  not  hear  the  witnesses  testify,  but  I  have 
seen  them. 

By  MR.  DOSTER. 

It  is  the  general  opinion  of  the  people  of 
Troy  that  Mr.  Norton  is  not  to  be  believed. 

D.    W.    MlDDLETON. 

For  the  Defense. — June  6. 

I  am  clerk  of  the  Supreme  Court  of  the 
United  States.  Mr.  Marcus  P.  Norton  ar 
gued  a  motion  in  the  Supreme  Court  in  the 
case  of  Willis  Hamiston  v.  John  tStainthrop, 
et  al,  on  the  3d  of  March.  1864. 

[The  entry  from  tho  court  records  was  read  by  the  wit 
ness.] 


DEFENSE   OF    SAMUEL    A.  MUDD. 


217 


JUDGE  A.  B.  OLIN. 

For  the  Defense. — June  9. 

By  MR.  DOSTER. 

I  resided  in  the  city  of  Troy,  New  York, 
about  twenty  years  prior  to  my  coming  to 
this  city,  two  years  ago.  I  knew  Marcus  P. 
Norton,  a  lawyer  of  that  city.  Judging  by 
what  people  say  of  him  in  respect  to  his  char 
acter  for  veracity,  I  should  say  his  reputation 
was  bad,  and  where  his  interests,  or  passions, 
or  prejudices  were  enlisted,  I  would  not  rely 
upon  his  testimony  under  oath. 

Cross-examined  by  the  JUDGE  ADVOCATE. 

The  opinion  I  express  has  been  formed 
from  the  speech  of  those  who  have  been 
brought  into  contact  with  him;  generally 
persons  against  whom  he  has  been  employed 
as  counsel  or  attorney,  or  parties  litigating 
in  patent  suits  that  he  had  been  connected 
with. 

Q.  State  whether  you  have  knowledge  of 
the  fact  that  that  particular  class  of  suits, 
probably  more  than  others,  excites  bitter  per 
sonal  animosity  ? 

A.  All  the  knowledge  I  have  of  them 
mostly  arises  since  the  commencement  of  my 
duties  here  as  a  judge  of  this  District.  I  had 
uniformly  refused  to  take  employment  in  that 
kind  of  cases,  though  I  had  opportunity  to 
do  so,  and  I  had  very  little  knowledge  of  those 
controversies,  except  incidentally,  until  I  came 
here,  where  appeals  are  freqwently  brought 
from  the  Commissioner  of  Patents  to  the 
court  of  which  I  am  a  member,  and  I  have 
seen  enough  of  them  to  know  that  they  are 
about  as  bitter  as  any  controversies  in  law 
that  I  have  any  knowledge  of. 

Q.  Are  not  the  parties  and  counsel  in  these 
cases  extremely  censorious  in  the  tone  of 
conversation  about  each  other  ? 

A.   I  have  seen  instances  of  that  kind. 

I  know  Mr.  Burden,  of  Troy,  very  well. 
Mr.  Marcus  P.  Norton  has  been  employed  as 
counsel  in  opposition  to  him  in  patent  cases. 
Mr.  Burden  is  a  very  wealthy  man.  He  has 
had  several  very  warmly  contested  suits. 
One  of  them  is  known  all  over  the  country — 
the  suit  in  reference  to  the  spike  machine, 
his  invention  for  making  hook-headed  spikes. 
His  controversy  with  Corning  &  Co.  has 
been  pending  now  before  Chancellor  Wai- 
worth  for  ten  or  twelve  years,  taking  testi 
mony  in  reference  to  the*  damages  that  he 
sustained.  I  believe  he  has  not  got  through 
with  it.  He  has  had  several  other  very 
warmly  contested  suits  of  the  same  kind. 

Q.  Would  not  the  conversation  of  a  man 
of  his  fortune  and  influence,  and  that  of  his 


friends,  continued  through  a  series  of  years, 
under  the  influence  of  excited  legal  contro 
versies  in  which  this  witness  was  involved 
against  him,  afford  to  your  mind  some  ex 
planation  of  the  reputation  which  you  say 
exists  ? 

Mr.  DOSTER.     I  object  to  that  question. 

The  JUDGE  ADVOCATE.  I  wish  to  get  at  the 
grounds  of  the  witness's  opinion,  and  I  think 
this  is  a  legitimate  mode  of  reaching  it. 

Mr.  DOSTER.  Judge  Olin  can  scarcely  be 
brought  here  as  an  expert  as  to  the  character 
of  the  testimony  of  Mr.  Burden.  It  is  not 
material  to  the  issue  what  Mr.  Burden  said. 

The  JUDGE  ADVOCATE.  It  is  not  an  im 
peachment  of  Mr.  Burden  ;  it  is  an  explana 
tion. 

Mr.  DOSTER.  It  is  evidently  brought  here 
to  contradict  and  invalidate  the  testimony  of 
Mr.  Burden.  There  can  be  no  other  object. 

The  JUDGE  ADVOCATE.  I  can  not  take  the 
opinion  of  Judge  Olin  without  the  privilege 
of  looking  at  the  foundation  for  that  opinion, 
and  the  question  is  directed  but  to  that  ob 
ject. 

The  Commission  overruled  the  objection. 

WITNESS.  Yes,  undoubtedly  it  would.  Mr. 
Burden  is  a  man  of  wealth,  high  social  posi 
tion,  and  many  friends,  and  he  usually  speaks 
his  mind  freely. 

Mr.  Norton's  reputation,  I  believe,  was 
very  questionable  before  he  had  any  contro 
versy  or  connection  with  Mr.  Burden.  Mr. 
Norton  is  not  considered  one  of  the  leading 
lawyers  of  Troy,  and  is  not  classed  among 
lawyers  of  any  considerable  attainments,  as 
far  as  I  know.  He  is,  I  understand,  an  in 
genious  and  excellent  mechanic,  and  is  prob 
ably  very  efficient  in  cases  of  the  description 
in  which  he  is  usually  employed. 

Mr.  EWING,  by  the  consent  of  the  Judge 
Advocate,  presented  the  following  agreement 
entered  into  between  him  and  the  Judge 
Advocate : 

"  It  is  admitted  by  the  prosecution  that 
John  F.  Watson,  John  R.  Richardson,  and 
Thomas  B.  Smith,  loyal  citizens,  will  testify 
that  they  are  acquainted  with  the  reputation 
of  Daniel  J.  Thomas  where  he  lives,  and 
that  it  is  bad;  and  that,  from  their  knowl 
edge  of  it,  they  would  not  believe  him  on 
oath.  And,  further,  that  John  R.  Richard 
son  above  named  will  testify  that  Daniel  J. 
Thomas  (the  witness  for  the  prosecution) 
made  the  statement  on  the  1st  of  June  (the 
National  Fast  Day,)  as  sworn  to  by  William 
J.  Watson  before  the  Court  this  day.  And 
the  prosecution  agree  that  this  statement  be 
put  upon  record,  and  received  and  weighed 
by  the  Court  as  though  said  witnesses  had 
actually  so  testified  before  it." 


218 


THE    CONSPIRACY    TRIAL. 


TESTIMONY  IN  REBUTTAt 


JOHN  F.  HARDY. 

For  the,  Prosecution. — June  8. 

I  live  about  two  and  a  half  or  three  miles 
from  Dr.  Mudd,  the  prisoner  at  the  bar.  On 
Saturday  evening,  the  day  after  the  assassin 
ation,  just  before  sundown,  I  saw  Dr.  Mudd 
within  a  few  hundred  yards  of  my  house. 
He  said  that  there  was  terrible  news ;  that 
the  President  and  Mr.  Seward  and  his  son 
had  been  assassinated  the  evening  before. 
Something  was  said  in  that  connection  about 
Boyle  (the  man  who  is  said  to  have  killed 
Captain  Watkins)  assassinating  Mr.  Seward. 
I  remember  that  Booth's  name  was  men 
tioned  in  the  same  connection,  and  I  asked 
him  if  it  was  the  man  who  had  been  down 
there,  and  was  represented  as  Booth.  His 
reply  was  that  he  did  not  know  whether  it 
was  that  man  or  some  of  his  brothers;  he 
understood  that  he  had  some  brothers.  That 
ended  the  conversation,  except  that  he  said 
it  was  one  of  the  most  terrible  calamities  that 
could  have  befallen  the  country  at  this  time. 

Q.  Did  you  say  that  it  was  understood  or 
said  that  Booth  was  the  assassin  of  the 
President? 

A.  There  was  some  such  remark  as  that 
made,  but  I  do  not  exactly  remember  the 
remark. 

He  said  nothing  to  me  in  that  conversa 
tion  about  two  strangers  having  called  at  his 
house,  and  remaining  there  all  day. 

When  I  asked  if  it  was  Booth  that  had 
been  down  there,  I  referred  to  the  stranger 
that  I  had  seen  at  church  some  time  before 
last  Christmas,  perhaps  in  November,  whose 
name  I  was  told  was  Booth.  I  saw  him 
outside  the  church;  I  do  not  know  whether 
he  went  into  church.  I  saw  him  at  the  same 
place  some  time  afterward,  and  asked  if  it 
w'is  the  same  man,  and  the  answer  was 
"Yes."  I  do  not  remember  whether  Dr. 
Mudd  was  there  on  either  occasion. 

Cross-examined  by  MR.  EWING. 

I  do  not  think  I  asked  Dr.  Mudd  what 
was  the  news;  he  told  me  there  was  bad 
news  in  the  country.  He  said  that  he  had 
been  to  Bryantown  and  got  the  news  there. 
I  had  not  'heard  a  word  of  it  before.  Dr. 
Mudd  seemed  to  be  in  earnest  when  he 
spoke  of  this  being  a  terrible  calamity,  and 
I  do  honestly  think  he  felt  the  sorrow 
he  expressed.  The  conversation  took  place 
about  two  hundred  yards  from  my  door,  and 
my  house  is  two  and  a  half  miles  walking 
distance,  or  three  miles  horseback,  from  Dr. 
Mudd's.  Dr.  Mudd  came  to  see  me  about 
some  rail  lumber,  about  which  I  had  spoken 
to  him  some  time  early  in  the  winter;  they 


were  some  chestnut-trees,  which  Dr.  Mudd 
had  ordered  me  to  fell  and  cut  up  into  rails 
for  him. 

I  can  not  recall  the  dates  on  which  I  saw 
Booth  in  the  county.  I  do  not  remember 
any  dates  at  all.  1  think  the  two  visits  were 
about  a  month  apart,  perhaps  a  little  more 
or  less,  and  the  first  visit  I  think  must  have 
been  some  time  in  November.  It  strikes  me 
that  Booth's  visits  were  before  Christmas.  I 
saw  him  twice  on  his  second  visit;  on  Sun 
day  at  church,  and  on  Monday  evening  I 
met  him  riding  by  himself  on  the  road  lead 
ing  straight  to  Horsehead. 

When  Dr.  Mudd  mentioned  the  news  he 
had  got  at  Bryantown,  he  seemed  to  be 
somewhat  excited,  but  not  more  so  than  the 
people  of  the  county  generally  when  they 
first  heard  it.  When  I  first  heard  it,  I  could 
hardly  believe  it.  I  could  hardly  express  my 
feelings  when  I  heard  it;  I  felt  very  singular. 
He  seemed  to  feel  sincerely  sorry.  I  do  not 
think  he  staid  ten  minutes. 

From  the  position  in  which  we  were,  I 
could  not  notice  whether  any  one  rode  with 
him  along  the  main  road ;  there  was  a 
bunch  of  pines  on  an  elevated  spot,  just 
above  where  we  were  standing,  from  which 
the  road  goes,  and  then  makes  a  turn,  so  that 
I  could  not  see.  I  heard  of  no  one  being 
with  him. 

I  know  where  Esquire  George  Gardiner 
lives  very  well ;  he  is  the  gentleman  that  is 
said  to  have  sold  a  horse  to  Booth.  It  is 
the  nearer  road  from  Bryantown  to  Esquire 
Gardiner's  to  go  by  Dr.  Mudd's  house,  which 
is  a  little  oft'  the  main  road,  than  to  go  by 
the  main  road. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM. 

Dr.  Mudd  did  not  tell  me  how  or  from 
whom  he  had  obtained  the  information  that 
the  President  had  been  assassinated  the 
evening  before;  he  simply  said  he  had  heard 
it  at  Bryantown. 

FRANCIS  R.  FARRELL. 
For  the  Prosecution. — June  8. 

I  live  near  Bryantown,  and  am  very  well 
acquainted  with  Dr.  Samuel  A.  Mudd.  He 
came  to  my  house  on  Easter  Saturday  even 
ing  last,  the  day  following  the  assassination 
of  the  President,  as  near  as  I  can  judge,  be 
tween  4  arid  5  o'clock".  My  house  is  about 
midway  between  Dr.  Mudd's  and  Bryantown  ; 
he  came  from  the  road  leading  to  Bryantown, 
and  turned  into  the  road  that  leads  to  my 
house.  I  do  not  know  whether  he  was 
coming  from  Bryantown,  and  did  not  learn 
it  from  his  conversation. 


TESTIMONY   IN   KEBUTTAL. 


219 


Q.  While  he  was  at  your  house,  was  the 
assassination  of  the  President  a  subject  of 
conversation  between  him  and  yourself? 

A.   Yes,  sir,  he  told  it  there. 

Mr.  EWIXG.     I  object. 

The  .JUDGE  ADVOCATE.  The  gentleman 
objects  to  our  giving  the  statements  of  Dr. 
Mudd  in  evidence,  1  suppose. 

Mr.  EWING.  I  object  to  it  on  the  ground 
that  it  is  not  rebutting  evidence. 

The  JUDGE  ADVOCATE.  I  could  offer  it  on 
another  and  distinct  ground;  that  it  is,  so  far 
as  we  understand  it,  a  confession  on  the  part 
of  the  prisoner — which  is  at  all  times  com 
petent  evidence — and  that  it  has  come  to  our 
knowledge  since  the  commencement  of  this 
trial,  and  since  the  close  of  our  testimony 
on  this  point.  On  that  ground  alone,  I  think 
the  Court,  in  the  exercise  of  a  sound  dis 
cretion,  would  allow  it  to  be  introduced ;  but 
I  think  also  it  is  strictly  rebutting  testimony 
offered  for  the  defense. 

Mr.  EWIXG.  I  will  state  to  the  Court  that, 
if  this  testimony  is  admitted,  it  will  be  indis 
pensable  to  the  rights  of  the  accused  to  have 
one  or  more  witnesses  from  that  neighbor 
hood  who  have  not  already  been  subpenaed. 

The  Commission  overruled  the  objection. 

WITNESS.  Mr.  Hardy  and  myself  were  in 
the  house  when  Dr.  Mudd  came  there,  and 
Mr.  Hardy  went  out  and  had  some  talk  with 
the  Doctor;  I  do  not  know  what.  Directly 
after  he  went  out,  he  called  out  to  me  that 
the  President  was  assassinated,  and  also  Sew- 
ard  and  his  son,  I  think.  Then  I  called  out 
to  where  Dr.  Mudd  and  Mr.  Hardy  were,  and 
asked  if  it  was  so;  I  understood  the  Doctor 
to  say  it  was. 

I  asked  the  question  who  assassinated  the 
President,  and  the  Doctor  replied  and  said, 
u  A  man  by  the  name  of  Booth."  Mr.  Hardy 
then  asked  him  if  it  was  the  Booth  that  was 
down  there  last  fall.  The  Doctor  said  that 
he  did  not  know  whether  it  was  or  not ;  that 
there  were  three  or  four  men  of  the  name 
of  Booth,  and  he  did  not  know  whether  it 
was  that  one  or  not;  he  said  that  if  it  was 
that  one,  he  knew  him.  That  was  all  he 
said  about  it,  excepting  that  he  said  he 
was  very  sorry  that  this  thing  had  occurred — 
very  sorry. 

He  did  not  give  any  particulars  «f  the 
assassination,  and  made  no  allusion  to  two 
men  having  been  at  his  house  that  morning 
and  during  the  day.  I  do  n't  think  he  staid 
over  fifteen  minutes.  I  can  not  say  which 
way  he  turned  when  he  got  on  to  the  main 
road  after  he  left;  neither  did  I  see  from 
which  way  he  came  when  he  turned  into 
the  lane  leading  to  my, house. 

Cross-examined  by  MR.  EWING. 

It  was  Mr.  John  F.  Hardy  that  was  in  my 
house  when  Dr.  Mudd  came.  Dr.  Mudd 
said  that  he  thought  at  this  time  that  the 
killing  of  the  President  was  the  worst  thing 


that  could  have  happened.  That  was  the 
only  reason  he  gave  why  he  was  sorry,  ac 
cording  to  my  recollection.  He  said  it  would 
make  it  a  great  deal  worse  for  the  country; 
I  am  not  certain,  but  I  think  he  said  it 
would  be  a  great  deal  worse  than  while  the 
war  was  going  on.  From  his  appearance,  I 
think  he  was  entirely  in  earnest  in  express 
ing  his  sorrow  for  the  crime. 

I  do  not  know  whether  any  one  was  with 
Dr.  Mudd  on  the  main  road;  I  can  not  see 
any  part  of  it  from  my  house,  but  there 
was  no  one  with  him  in  the  road  lead 
ing  down  to  my  house,  after  he  left  the  main 
road. 

Dr.  Mudd  came  to  see  Mr.  Hardy  about 
getting  some  rail  timber,  so  he  said;  but 
he  did  not  get  any ;  Mr.  Hardy  had  let  Mr. 
Sylvester  Mudd  have  the  timber.  I  can  not 
be  sure  about  the  time  when  Dr.  Mudd  came 
there ;  it  was  cloudy  and  I  could  not  see  the 
sun ;  it  might  have  been  as  late  as  5  o'clock ; 
it  seemed  a  short  time  after  he  left  till  it 
was  dark,  not  more  than  a  couple  of  hours, 
any  how. 

JACOB  SHAVOK. 
For  the  Prosecution. — June  12. 

Since  the  summer  of  1858,  I  have  known 
Marcus  P.  Norton  quite  intimately.  We 
have  both  lived  in  Troy.  He  has  been  em 
ployed  by  the  firm  of  Charles  Eddy  &  Co., 
of  which  I  am  a  member,  for  six  years,  as 
patent  lawyer.  He  has  had,  and  is  still 
getting,  practice  in  Troy.  I  know  that  his 
reputation,  as  a  man  of  integrity  and  truth, 
is  good  there;  and  from  my  knowledge  of 
his  reputation,  his  conduct,  and  character,  I 
would  fully  believe  him  under  oath.  In  the 
early  part  of  1863,  an  attempt  was  made  to 
impeach  Mr.  Norton's  credibility  as  a  wit 
ness,  but  it  was  unsuccessful,  and  it  was  so 
regarded  by  the  public  and  by  myself. 

Cross-examined  by  MR.  DOSTER. 

Mr.  Norton's  reputation  for  veracity  among 
the  business  men  of  Troy  generally  is  good. 
I  do  know  that  an  unsuccessful  attempt  to 
impeach  him  was  made;  but  I  do  not  know 
that  eighty  men  in  Troy  swore  that  he  could 
not  be  believed  ;  others  in  Troy  know  that, 
as  you  yourself  know. 

We  employed  Mr.  Norton  in  the  Stanley 
case,  and  in  a  number  of  others;  we  have 
more  or  less  every  year.  In  an  individual 
case  of  my  own,  1'employed  another  lawyer, 
and  Mr.  Norton  was  a  witness.  It  was  an 
important  case,  and  it  was  in  this  case  that 
an  attempt  was  made  to  impeach  Mr.  Nor 
ton's  testimony. 

Q.  And  if  this  man's  testimony  had  been 
successfully  impeached,  you  would  have  lost 
the  case,  would  you  not? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question,  and  it  was  waived. 


220 


THE  CONSPIRACY   TRIAL. 


WILLIS  HAMISTON. 
For  the  Prosecution. — June  12. 

I  reside  in  Troy,  and  have  known  Marcus 
P.  Norton  for  nine  or  ten  years,  intimately 
for  six.  His  reputation  for  truth  and  integ 
rity,  as  far  as  my  knowledge  extends,  is  good, 
and  I  would  believe  him  under  oath  or  not. 
He  was  engaged  in  two  patent  cases  for  me, 
and  is  extensively  employed  in  patent  cases 
in  the  United  States  Courts. 

Cross-examined  by  MR.  DOSTER. 

Mr.  Norton  is  not  employed  as  a  witness 
in  my  individual  case;  he  is  my  lawyer. 
There  is  considerable  money  involved  in  it. 

HON.  HORATIO  KING. 
For  the  Prosecution. — June  12. 

I  reside  in  Washington  City,  and  have 
been  an  Assistant  Postmaster-General  and 
Postmaster-General.  While  living  here.  I 
have  made  the  acquaintance  of  Marcus  P. 
Norton,  of  Troy;  I  have  known  him  quite 
intimately  for  eight  or  ten  years.  Before  I 
left  the  Department  I  saw  him  very  fre 
quently,  once  or  twice  a  year,  perhaps  oft- 
ener ;  but  since  I  left  the  department  1  have 
had  business  with  him,  and  have  seen  him 
oftener,  and  known  more  of  him,  than  be 
fore.  I  have  always  regarded  him  as  scru 
pulously  honest  and  correct.  So  far  as  his 
business  with  me  is  concerned,  I  never  dealt 
with  a  more  truthful  man,  or  one  more  par 
ticular  to  keep  his  engagements;  and  from 
my  knowledge  of  him  and  his  character,  I 
would  most  unhesitatingly  and  fully  believe 
him  under  oath. 

Cross-examined  by  MR.  DOSTER. 

I  have  never  lived  in  Troy,  and  do  not 
know  Mr.  Norton's  reputation  there.  I  know 
nothing  of  his  reputation  for  veracity  except 
as  I  came  in  contact  with  him  here.  My 
business  with  him  was  in  reference  to  patent 
post-rating  and  canceling  stamps.  I  know 
nothing  of  him  beyond  that  here,  but  I  knew 
him  quite  intimately.  I  never  heard  any 
one  here  speak  otherwise  than  favorably  of 
him.  I  never  heard  that  his  character  for 
veracity  was  impeached  until  the  present 
time. 

By  the  JUDGE  ADVOCATE. 

I  saw  Mr.  Norton  frequently  in  March 
last;  I  used  to  meet  him  nearly  everyday 
while  he  was  here  last  winter. 

Q.  State  whether  or  not,  in  any  of  those 
conversations,  he  mentioned  to  you  the  sin 
gular  manner  in  which  some  person  had 
called  at  his  room,  asking  for  Booth. 

Mr.  DOSTER.  I  object  to  that  question, 
because  it  is  not  material  to  the  point  in 
issue.  Besides,  it  has  not  been  brought  out 
on  the  cross-examination. 

The  JUDGE  ADVOCATE.     It  is  entirely  com 


petent  for  me  to  corroborate  the  statement 
which  Mr.  Norton  made  before  the  assas 
sination  of  the  President,  and  before  there 
had  arisen  any  possible  motive  for  the  fabri 
cation  of  this  testimony,  to  show  that  that 
statement  was  substantially  the  same,  as  far 
as  it  went,  as  that  which  he  has  now  made 
before  the  Court  in  regard  to  the  call  the 
prisoner,  Mudd,  made  at  his  room,  asking 
for  Booth.  I  think  it  is  competent  to  sus 
tain  him,  assisted  as  he  has  been  by  testi 
mony  for  the  defense. 

The  Commission  overruled  the  objection. 

WITNESS.  I  recollect  perfectly  that  he 
mentioned  at  the  time  that  some  person  had 
come  into  the  room  very  abruptly,  so  much 
so  as  to  alarm  his  sister-in-law,  who  was  in 
an  adjoining  room;  I  do  not  remember  for 
whom  he  said  the  person  inquired.  I  think 
he  told  me  this  some  time  in  March,  but  I 
can  not  state  positively,  nor  can  I  state  ore- 
cisely  when  this  entrance  was  made. 

By  MR.  DOSTER. 

Mr.  Norton  did  not,  that  I  remember,  men 
tion  his  having  overheard  a  conversation 
between  Booth  and  Atzerodt  while  he  was 
there;  he  first  alluded  to  it  in  a  letter  he 
wrote  to  me  on  the  15th  of  May. 

By  ASSISTANT  JUDGE  ADVOCATE  BURNETT. 

Q.  [Submitting  to  the  witness  a  letter.]  Is 
that  the  letter  to  which  you  refer  ? 

A.  It  is.  It  was  received  by  me,  I  pre 
sume,  on  the  17th  of  May.  It  bears  my  in 
dorsement.  The  letter  is  dated  Troy,  New 
York,  May  15,  1865,  addressed  to  me,  and 
signed  "  Marcus  P.  Norton." 

Mr.  DOSTER.  I  object  to  the  reading  of 
the  letter. 

Assistant  Judge  Advocate  BURNETT.  [To 
the  witness.]  Head  the  passage  of  it  which 
relates  to  the  matter  of  which  you  are  now 
speaking. 

WITNESS.  It  is:  "I  believe  Johnson  was 
xusoned  on  the  evening  of  March  3d,  or  the 
iiorning  of  March  4th,  last.  I  know  of 
some  things  which  took  place  at  the  Na 
tional  Hotel  last  winter,  between  Booth  and 
strangers  to  me,  which,  since  the  death  of 
our  good  President,  have  thrown  rne  into 
alarm  and  suspicion,  and  about  which  I  will 
:alk  with  you  when  I  see  you." 

By  MR.  DOSTER. 

I  think  that  is  the  first  intimation  I  had 
of  it;  I  do  not  remember  Mr.  Norton's  men- 
ioning  that  conversation  to  me  before.  I 
net  him  nearly  every  day  last  winter. 

By  MR.  EWING. 

Mr.  Norton  was  here  at  the  inauguration  ; 
!  procured  tickets  for  him  and  his  friends 
o  go  into  the  Capitol,  and  my  impression 
s  that  he  did  not  leave  the  city  until  sev 
eral  days  afterward.  I  know  that  I  saw  him 
after  the  inauguration,  because  he  spoke  of 


TESTIMONY    CONCERNING   MICHAEL   0  LAUGIILIN. 


221 


feeling  grateful  to  me  for  having  procured 
the  tickets  for  him.  I  should  say  it  was 
about  the  time  of  the  inauguration,  though 
I  have  no  means  of  fixing  the  date,  that  Mr. 
Norton  mentioned  to  me  the  fact  of  a  per 
son  entering  his  room.  It  was  the  abrupt 
manner  of  the  person  that  excited  his  sus 
picions,  and  it  alarmed  his  sister  very  much. 
I  think  he  said  she  was  unwilling  to  remain 
in  the  room  alone  after  that. 

I  do  not  remember  his  stating  the  time,  but 
I  think  the  circumstance  occurred  just  about 
at  the  time  he  told  me,  because  I  was  in  free 
intercourse  with  him  nearly  every  day  while 
he  was  here.  I  do  not  remember  that  he 
gave  me  any  description  of  the  man,  or  that 
he  mentioned  his  inquiring  after  anybody;  I 
know  he  told  me  that  he  followed  the  man. 
He  expected  the  man  to  go  up  stairs,  but  in 
stead  of  that  he  went  down  stairs,  and  he  fol 
lowed  him ;  he  did  not  say  how  far,  whether 
down  to  the  office  or  not.  I  do  not  remember 
whether  Mr.  Norton  spoke  of  having  any 
conversation  with  the  man,  but  my  impres 
sion  is  that  he  said  the  man  made  some  ex 
cuse  for  his  abrupt  entrance. 

WILLIAM  WHEELER. 

For  the  Prosecution. — June  9. 

By  the  JUDGE  ADVOCATE. 

I  have  known  Marcus  P.  Norton  intimately 
for  twelve  or  fifteen  years;  I  knew  him  first 
at  school  in  Vermont,  and  subsequently  at 
Troy,  New  York.  From  my  long  personal 
acquaintance  with  him,  I  am  enabled  to  state 


that  his  reputation  as  a  man  of  truth  and  in 
tegrity  is  good,  and  from  this  knowledge  of 
his  character  I  would  have  no  hesitation  in, 
believing  him  under  oath. 

Cross-examined  by  MR.  DOSTER. 

I  know  by  rumor  only  of  one  or  two  cases 
of  attempted  impeachment  of  Mr.  Norton, 
but  they  were  failures.  Mr.  Norton  has  a 
large  business  at  Troy,  and  is  employed  by 
first-class  houses. 

SILAS  H.  HODGES. 
For  the  Prosecution. — June  9. 

I  reside  in  Washington,  and  hold  the  ap 
pointment  of  examiner-in-chief  in  the  Patent 
Office.  I  resided  for  twenty  years  at  Rutland, 
Vt.  I  have  known  Marcus  P.  Norton  for  at 
least  eleven  years.  Some  years  ago  Mr.  Nor 
ton  moved  to  Troy,  and  I  do  not  know  how 
he  stands  there  so  well  as  I  do  at  Rutland. 
Until  within  the  last  two  or  three  years  I 
never  heard  any  thing  against  his  reputation, 
and  what  I  have  heard  has  grown  out  of  liti 
gations  in  which  he  has  been  engaged.  Out 
side  of  these  litigations,  I  never  heard  his 
veracity  questioned. 

Cross-examined  by  MR.  DOSTER. 

I  do  not  know  that  I  can  recall  any  inci 
dents  in  which  I  have  heard  any  person  speak 
of  Mr.  Marcus  Norton  as  a  man  distinguished 
for  veracity.  It  is  about  five  years  since  I 
left  Rutland,  and  I  have  known  him  per 
sonally  ever  since. 


TESTIMONY  CONCERNING  MICHAEL  O'LAUGHLIN. 


WILLIAM  WALLACE. 
For  the  Prosecution. — May  9. 

On  the  17th  of  April,  I  arrested  the  pris 
oner,  O'Laughlin,  at  the  house  of  a  family 
named  Bailey,  on  High  Street,  Baltimore. 
This  was  not  his  boarding-house.  I  asked 
him  why  he  was  there  instead  of  at  his  board 
ing-house;  he  said  that  when  he  arrived  in 
town  on  Saturday  he  was  told  that  the  officers 
had  been  looking  for  him.  and  that  he  went 
away  to  a  friend  of  his  on  Saturday  and  Sun 
day  night.  When  he  was  arrested,  he  seemed 
to  understand  what  it  was  for,  and  did  not 
ask  any  questions  about  it. 

Cross-examined  by  MR.  Cox. 

Q.  Did  the  brother-in-law  of  the  prisoner 
send  for  you  or  go  for  you  to  arrest  him  ? 


Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  The  brother-in-law 
is  not  the  prisoner.  The  proposition  is  to 
show  a  declaration  of  the  prisoner  on  his 
own  motion,  and  at  another  time  and  place: 
it  is  the  declaration  of  a  third  person,  and  I 
object. 

Mr.  Cox.  The  object  is  to  show  that  the 
prisoner  voluntary  surrendered  himself  by 
sending  for  the  officer.  The  evidence  offered 
on  the  part  of  the  prosecution  was  designed 
to  show  that  O'Laughlin  was  avoiding  the 
arrest.  In  cross-examination,  I  desire  to  show 
that  the  arrest  was  made  at  the  instance  of 
the  brother-in-law;  and  I  propose  to  follow 
that  hereafter,  by  proof  that  the  prisoner 
himself  sent  his  brother-in-law  to  communi 
cate  his  whereabouts  to  the  officer.  I  think 
that  is  legitimate  on  cross-examination. 


222 


THE    CONSPIRACY   TRIAL. 


Assistant  Judge  Advocate  BINGHAM.  It  is 
not  cross-examination;  it  is  new  matter  al 
together.  ,  We  have  not  offered  any  evidence 
of  what  the  prisoner  said  to  his  brother-in- 
law;  this  witness's  testimony  was  as  to  what 
the  prisoner  said  to  him. 

Mr.  Cox.  It  is  not  the  declaration  of 
a  fact  that  I  offer,  but  of  an  act  done  by 
the  brother-in-law,  on  which  the  officer 
acted. 

The  Commission  overruled  the  objection. 

WITNESS.  I  am  well  acquainted  with  Mr. 
Maulsby.  He  was  recommended  to  me  on 
Sunday  evening  as  a  good  Union  man,  one  in 
whom  I  could  put  implicit  confidence.  He 
knew  I  was  looking  for  O'Laughlin.  I  told 
him  I  wished  him  to  assist  me  in  getting  him. 
He  said  he  would  do  all  he  could  to  assist  me. 
On  Monday  morning  he  came  and  told  me 
that,  if  I  would  go  with  him,  he  thought  he 
could  find  O'Laughlin,  and  I  went  with  him 
to  the  house  where  we  found  him. 

O'Laughlin,  I  think,  said  that  when  he  got 
to  his  brother-in-law's  house,  on  Saturday 
afternoon,  he  heard  that  the  detectives  had 
been  there.  He  said  he  knew  nothing  of 
the  assassination  whatever,  and  could  account 
for  his  whereabouts  during  all  the  time  of  his 
etay  in  Washington  by  the  parties  who  were 
with  him. 

MARSHAL  JAMES  L.  McPnAiL. 
For  the  Prosecution. — May  22. 

Michael  O'Laughlin,  the  prisoner,  came 
into  our  lines  about  the  time  of  the  battles 
of  Antietam  and  South  Mountain.  He  came 
in  at  Martinsburg,  I  think,  about  September, 
1863.  He  stated  to  me  that  he  had  taken 
the  oath  of  allegiance  at  Martinsburg.  I 
found  in  the  records  of  my  office,  this  morn 
ing,  the  oath  of  allegiance  of  one  Michael 
O'Laughlin,  dated  Baltimore,  June  16,  1863, 
and  signed  Michael  O'Laughlin,  and  is,  I  be 
lieve,  in  the  handwriting  of  the  prisoner.  I 
have  seen  a  great  deal  of  his  handwriting 
within  the  last  two  or  three  weeks,  and  have 
no  doubt  the  signature  is  his. 

When  O'Laughlin  was  first  brought  to  my 
office,  he  stated  that  he  had  not  reported;  he 
afterward  sent  for  me  to  correct  that  error, 
and  to  say  that  he  had  reported  at  Martins 
burg  when  he  came  into  our  lines,  and  had 
there  taken  the  oath  of  allegiance. 

By  the  COURT. 

I  only  know  of  O'Laughlin  being  in  the 
rebel  service  from  his  own  declarations.  Mr. 
O'Laughlin's  family  have  resided  in  Balti 
more  as  long  as  I  can  remember.  I  have 
known  them,  I  suppose,  for  thirty  years. 

MRS.  MARY  VAN  TINE. 
For  the  Prosecution. — May  15. 

I  reside  at  No.  420  D  Street,  in  this  city, 
and  keep  rooms  to  rent  I  see  two  gentle 


men  here  [pointing  to  the  accused,  Michael 
O^Laughlin  and  Samuel  Arnold]  who  had 
rooms  at  my  house.  I  am  not  positive,  but 
I  think  it  was  on  the  10th  of  February  last 
they  came.  John  Wilkes  Booth  came  very 
often  to  see  the  prisoners,  O'Laughlin  and 
Arnold,  but  did  not,  as  a  general  thing,  re 
main  very  long.  I  was  told  by  Arnold,  when 
I  inquired,  that  the  gentleman's  name  was 
John  Wilkes  Booth.  Sometimes  Booth  would 
call  when  they  were  out;  sometimes  he  called 
two  or  three  times  before  they  returned.  He 
generally  appeared  very  anxious  for  their  re 
turn.  Sometimes,  when  he  found  them  out, 
he  requested,  that  if  they  returned  before  he 
called  again,  that  they  would  come  to  the 
stable.  Or  he  sometimes  left  a  note,  going 
into  their  room  to  write  it.  Booth,  who  fre 
quently  came  in  a  carriage,  would  sometimes 
inquire  for  one,  sometimes  the  other,  but 
I  think  he  more  frequently  inquired  for 
O'Laughlin.  The  only  arms  I  ever  saw  in 
their  rooms  was  a  pistol ;  this  I  saw  only 
once. 

[Photograph  of  Booth  exhibited  to  the  witness.] 

I  recognize  that  as  a  likeness  of  Booth,  but 
I  should  not  call  it  a  good  one.  1  think  him 
a  better  looking  man  than  this  is.  The  last 
time  Booth  played  here,  about  the  18th  or 
20th  of  March  last,  when  he  played  Pescara, 
I  expressed  a  desire  to  see  him,  and  Mr. 
O'Laughlin  gave  me  complimentary  tickets. 

A  man  used  sometimes  to  call  to  see  them, 
and  I  think  he  passed  one  night  with  them, 
by  his  leaving  the  room  very  early  one  morn 
ing.  I  never  heard  his  name.  He  was  not 
what  you  would  call  a  gentleman  in  appear 
ance,  but  a  very  respectable-looking  mechanic. 
His  skin  was  hardened  like  that  of  a  man 
who  had  been  exposed  to  the  weather,  and 
he  had  sandy  whiskers.  I  do  not  see  him 
among  the  prisoners. 

Arnold  and  O'Laughlin  said  they  were  in 
the  oil  business,  but  they  did  not  say  that 
they  were  connected  with  Booth  in  it.  Let 
ters  occasionally  came  for  them,  but  not  a 
great  many.  The  letters  were  sometimes  ad 
dressed  to  one,  sometimes  to  the  other.  Ar 
nold  and  O'Laughlin  left  my  house,  I  think, 
on  the  Monday  following  the  Saturday  on 
which  Booth  played  at  the  theater;  about 
the  20th  of  March. 

Cross-examined  by  MR.  Cox. 

I  think  these  gentlemen  had  been  at  my 
house  two  or  three  weeks  when  they  said 
they  were  in  the  oil  business.  When  they 
left,  I  understood  they  were  going  to  Pennsyl 
vania.  Nothing  was  said  by  them  at  any 
time  about  having  abandoned  the  oil  busi 
ness.  They  did  not  stay  a  great  deal  in  their 
room,  and  they  were  sometimes  out  all  night. 
I  can  not  say  whether  Mr.  Booth's  visits 
were  more  frequent  during  February  or 
March.  He  was  a  constant  visitor.  I  never 
heard  any  of  their  conversations. 


TESTIMONY   CONCERNING   MICHAEL    0  LAUGHLIN. 


223 


BILLY  WILLIAMS  (colored.) 
For  the  Prosecution. — May  15. 


the  months.  It  might  have  been  the  middle 
of  March  or  toward  the  end.  Mr.  O'Laugh- 
lin's  letter  I  took  round  to  the  Holliday 


I  know  the  prisoner,  Mr.  O'Laughlin,  and  j  Street  Theater;  it  was  in  the  afternoon,  and 

I  found  him  in  the  dress-circle.     I  know  Mr. 
O'Laughlin  right  smart. 

Cross-examined  by  MR.  EWTNG. 

When  Mr.  Booth  gave  me  the  letters,  he 
said  that  one  was  to  go  up  to  Fayette  Street, 
above  Hart,  and  I  asked  a  lady  at  the  door, 
and  she  read  the  direction  to  me.  I  asked 
Mr.  Booth  how  his  mother  was,  and  he  said 
very  well;  and  he  said  he  was  going  away 
to  New  York  at  half-past  3  o'clock. 

JOHN  HAPMAN. 

For  the  Prosecution. — May  18. 
[Submitting  to  the  witness  a  telegraphic  dispatch.] 

I  have  seen  that  dispatch  before.     It  reads : 
WASHINGTON,  March  13, 1864. 

To  M.  O'Laughlin,  Esq.,  No.  57  North  Exeter 

Street,  Baltimore,  Md. 

Do  n't  fear  to  neglect  your  business.  You 
had  better  come  at  once. 

[Signed]  J.  BOOTH. 

[The  original  of  the  foregoing  dispatch  was  offered  in  evi 
dence.! 

This  dispatch  was  sent  by  telegraph  from 
this  city  to  O'Laughlin,  March  13,  1865.  We 
used  the  old  printed  forms  of  the  year  before, 
which  accounts  for  the  date  being  1864.  I 
knew  J.  Wilkes  Booth,  and  saw  him  write 
that  message. 

Cross-examined  by  MR.  Cox. 

Q.  Can  you  say  whether  this  is  a  question 
or  a  command,  '"'Don't  you  fear  to  neglect 
your  business?" 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  The  writing  must  be 
its  own  interpreter. 

The  Commission  sustained  the  objection. 

EDWARD  C.  STEWART. 
For  the  Prosecution. — May  18. 

I  am  a  telegraph  operator  at  the  Metro 
politan  Hotel  in  this  city. 

[A  telegraphic  dispatch  was  handed  to  the  witness.] 

I  sent  this  dispatch  myself  over  the  wires 
to  Baltimore;  it  is: 

WASHINGTON,  March  27,  1864. 
To  M.    O'Laughlin,    Esq.,    57   North   Exeter 

Street,  Baltimore,  Md. 

Get  word  to  Sam.  Come  on,  with  or  with 
out  him,  Wednesday  morning.  We  sell  that 
day  sure.  Don't  fail. 

J.  WILKES  BOOTH: 

[The  dispatch  was  offered  in  evidence.] 

I  did  not  know  the  man  who  gave  it  to 
me;  he  wrote  it  and  asked  me  to  send  it.  I 
think  I  should  know  him  if  I  were  to  se* 
his  photograph. 


I  know  Mr.  Arnold  by  sight. 

In  March  last  I  was  going  by  Barn  urn's 
Hotel,  when  Mr.  J.  Wilkes  Booth,  the  actor, 
came  down  the  steps  and  asked  me  if  I  would 
take  two  letters  for  him.  He  told  me  there 
was  one  for  0  Laughlin,  and  the  other  he 
said  I  was  to  take  to  the  number  that  was  on 
it.  He  did  not  tell  me  who  it  was  for.  There 
was  a  colored  fellow  with  me,  and  I  asked 
him  to  look  at  it  and  see  what  it  was,  as  I 
could  not  read  writing.  He  told  me  one  was 
for  Mr.  O  Laughlin,  and  the  other  was  for  Ar 
nold.  I  took  one  to  Mr.  O'Laughlin  at  the 
Baltimore  Theater,  and  one  I  carried  to  Mr. 
Arnold.  As  1  was  in  a  hurry,  I  gave  it  to  a 
lady  who  was  at  the  door,  and  she  said  she 
would  send  it  up  to  him.  1  saw  O'Laughlin 
at  the  theater,  and  gave  him  his  letter  there. 
I  said,  "Mr.  0  Laughlin,  here  is  a  letter  Mr. 
Booth  gave  to  me,"  and  I  handed  it  to  him. 

Mr.  Cox.  I  must  object  to  the  whole  of 
this  evidence  of  the  delivery  of  this  note  to 
O'Laughlin,  and  I  desire,  if  the  objection  is 
sustained,  that  it  be  struck  out  of  the  record. 

The  JUDGE  ADVOCATE.  If  the  Court  please, 
it  is  simply  going  to  establish  the  intimacy 
of  these  men,  their  close  personal  relations 
with  each  other,  as  evidenced  by  their  cor 
respondence;  and  I  think,  in  that  point  of 
view,  it  is  clearly  competent.  We  have  pre 
sented  them  as  visiting  each  other  constantly. 
Now  we  are  following  them  to  Baltimore,  arid 
showing  them  as  corresponding  with  each 
other  constantly.  Both  facts  go  to  establish 
an  intimacy  which  is  in  accordance  with  the 
theory  of  the  prosecution,  which  is,  that  they 
are  co-conspirators.  We  do  not  offer  the  con 
tents  of  the  letter;  simply  the  fact  of  their 
corresponding  with  each  other. 

Mr.  Cox.  I  object  to  any  evidence  of  the 
acts  of  Booth  himself.  The  act  of  sending 
a  note  to  an  individual,  no  matter  what  may 
be  the  contents  of  that  note,  would  be  no 
evidence  against  that  individual,  unless  the 
contents  were  accepted  and  acted  upon  by 
him.  The  mere  fact  of  intimacy  alone  is  an 
innocent  fact  on  the  part  of  the  accused,  and 
therefore  is  not  evidence,  I  think,  of  a  con 
spiracy.  I  therefore  object  to  it,  in  the  first 
place,  as  an  act  of  Booth  to  which  the  de 
fendant  is  not  a  party  at  all.  He  could  not 
help  receiving  a  letter  from  Booth.  The  act 
of  receiving  a  letter  was  an  entirely  innocent 
one.  I  object,  furthermore,  that  even  if  it 
tends  to  show  intimacy,  it  does  not  tend  to 
prove  the  guilt  of  the  party  of  the  charge 
now  made  against  him. 

The  Court  overruled  the  objection. 

Cross-examined  by  MR.  Cox. 

I  think  it  was  in  March  that  I  took  the 
letters,  because  I  heard  Tom  Johnson  say  it 
was  March.  I  never  took  much  notice  of 


224 


THE    CONSPIRACY   TRIAL. 


[The  photograph  of  Booth  shown  to  the  witness.] 

That  is  the  gentleman  who  sent  it.  The 
true  date  of  the  telegram  is  March  27,  1865, 
not  1864. 

Cross-examined  ly  MR.  Cox. 

This  paper  does  not  show  that  the  dis 
patch  was  sent  last  March,  it  is  dated  1864, 
but  that  was  because  we  used  last  year's 
blanks.  I  remember  sending  this  very  mes 
sage  this  year;  it  was  given  to  me  by  the 
gentleman  whose  photograph  has  been  shown 
to  me. 

By  the  COURT. 

I  have  been  an  operator  at  the  Metropolitan 
Hotel  about  ten  months.  I  was  not  there  in 
March,  1864. 

SAMUEL  STREETT. 
For  the  Prosecution. — May  15. 

I  have  known  the  prisoner,  Michael  O'- 
Laughlin,  from  his  youth.  About  the  1st  of 
April  last,  I  saw  him  in  this  city,  conversing 
with  John  Wilkes  Booth.  They  were  con 
ferring  together  in  a  confidential  manner  on 
the  stoop  of  a  house,  on  the  right-hand  side 
of  the  avenue  going  toward  the  Treasury 
Department;  I  do  not  know  what  house  it 
was.  There  were  three  of  them  in  company; 
Booth  appeared  to  be  the  speaker  of  the 
party,  and  the  third  person  was  an  attentive 
listener.  I  addressed  0' Laugh lin  first,  having 
known  him  more  familiarly  than  I  did  Booth. 

O'Laughlin  called  me  to  one  side,  and  told 
me  that  Booth  was  busily  engaged  with  his 
friend,  or  was  talking  privately.  They  were 
conversing  in  a  low  tone.  The  third  party, 
as  near  as  I  remember,  had  curly  hair;  he 
had  on  a  slouch  hat,  and  seemed  to  be  in  a 
stooping  position,  as  though  talking  to  Booth 
in  a  low  tone,  or  attentively  listening  to 
Booth's  conversation.  [Looking  at  the  pris 
oners.]  I  can  not  swear  that  the  man  is 
here. 

Cross-examined  by  MR.  Cox. 

The  house  at  which  I  saw  Booth  and 
O'Laughlin  conversing  was,  I  believe,  on  the 
avenue  between  Ninth  and  Eleventh  Streets; 
I  am  not  certain  about  the  date,  but  I  think 
it  was  nigh  on  to  April.  When  O'Laughlin 
made  the  remark  that  Booth  was  engaged 
with  his  friend,  it  is  likely  that  I  asked 
O'Laughlin  to  propose  to  Mr.  Booth  to  take  a 
drink,  and  O'Laughlin's  remark,  that  Booth 
was  engaged  with  a  friend,  might  have  been 
in  reply  to  my  invitation. 

BERNARD  T.  EARLY. 
For  the  Prosecution. — May  15. 

I  am  acquainted  with  the  prisoner,  O' 
Laughlin,  and  slightly  with  Mr.  Arnold.  I 
came  down  to  this  city  from  Baltimore  on  the 
Thursday  before  the  assassination — the  night 
of  the  illumination — with  Mr.  O'Laughlin  ; 


there  were  four  of  us  in  company.  Mr.  Ar 
nold  was  not,  to  my  knowledge,  on  the  cars. 
When  we  arrived  in  this  city,  O'Laughlin 
asked  me  to  walk  with  him  as  far  as  the  Xa- 
tional  Hotel.  He  did  not  take  a  room  there. 
I  do  not  know  that  he  made  inquiries  for 
Booth  at  the  desk,  nor  did  I  see  him  associ 
ating  with  Booth.  We  stopped  that  night  at 
the  Metropolitan  Hotel.  On  Friday  I  was 
with  O'Laughlin  the  greater  part  of  the  day. 
When  we  got  up,  we  went  down  and  took 
breakfast  at  Welch's  (Welcker's)  on  the  ave 
nue.  After  that,  all  four  of  us  came  up  the 
avenue  in  company.  When  passing  the  Na 
tional  Hotel,  about  9  o'clock,  I  think,  I 
stopped  to  go  back  to  the  water-closet.  When 
I  came  out,  Mr.  Henderson,  one  of  the  com 
pany,  was  sitting  down.  As  I  was  going  out, 
he  called  me  back,  and  told  me  to  wait  for 
O'Laughlin,  who  was  gone  up  stairs  to  see 
Booth.  We  waited,  I  judge,  about  three- 
quarters  of  an  hour,  but  as  he  did  not  come 
down,  we  went  out  without  him.  In  about 
an  hour  after  that,  when  we  were  at  a  res 
taurant  on  the  avenue,  between  Third  and 
Four-and-a-half  Streets,  O'Laughlin  came  in. 

O'Laughlin,  Henderson,  and  myself  had 
supper  at  AVelch's,  and  the  last  time  I  saw 
O'Laughlin  that  night  was  at  a  restaurant, 
going  out  with  Mr.  Fuller.  It  was  pretty 
late,  but  whether  it  was  before  or  after  the 
assassination  I  can  not  say.  O'Laughlin 
had  been  there  for  supper.  We  had  been 
drinking  considerably.  The  name  of  the 
present  proprietor  of  the  restaurant,  I  believe, 
is  Lichau.  I  think,  though  I  would  not  be 
certain,  that  O'Laughlin  remained  there  until 
after  the  assassination.  However,  I  distinctly 
remember  seeing  him  go  out  in  company 
with  Mr.  Fuller.  Mr.  Fuller  used  to  be 
employed  by  O'Laughlin's  brother  in  this 
city. 

O'Laughlin  returned  to  Baltimore  with  me 
next  day,  Saturday,  by  the  3  or  half-past  3 
o'clock  afternoon  train.  After  we  arrived  in 
Baltimore,  on  going  down  to  his  house,  we 
met  his  brother-in-law  on  the  way.  He 
told  Mr.  O'Laughlin  that  there  had  been 
parties  there  that  morning  looking  for  him. 
O'Laughlin  went  into  the  house,  and  asked 
me  if  I  would  remain  there  for  awhile;  after 
that  he  invited  me  to  come  in.  I  went  in, 
and  sat  in  the  parlor,  while  he  went  up  stairs 
to  see  his  mother;  he  remained  a  few  min 
utes,  and  then  came  down  and  said  lie  was 
not  going  to  stay  home  that  night.  I  can  not 
say  that  he  appeared  to  manifest  any  excite 
ment,  except  when  he  heard  that  there  were 
parties  after  him  because  of  his  known  inti 
macy  with  Booth,  having  been  acquainted 
with  him,  and  in  the  habit  of  going  with  him, 
and  from  being  supposed  to  be  connected 
with  him  in  the  oil  business 

Cross-examined  by  MR.  Cox 

I  came  down  to  Washington  with  Mr. 
Henderson,  who  is,  I  believe,  a  Lieutenant  in 


TESTIMONY  CONCERNING  MICHAEL  0  LAUGHLIN. 


225 


the  United  States  navy,  Edward  Murphy, 
O'Laughlin,  and  myself.  I  was  invited  down 
by  Mr.  Henderson.  He  came  to  the  store 
after  me  .that  afternoon,  and  asked  me  to 
come  down,  with  the  intention  of  having  a 
good  time,  and  to  see  the  illumination.  I 
heard  Mr.  Murphy  say  that  he  invited  them. 
Mr.  O'Laughlin  came  to  the  store  with  Mr. 
Henderson,  and  Henderson  invited  me  to  go 
along  with  them.  We  slept  at  the  Metro 
politan  Hotel  on  Thursday  night.  Hender 
son,  Smith,  and  myself  slept  together  in  a 
three-bedded  room,  and  O'Laughlin,  whose 
name  came  last  as  we  signed  our  names, 
had  a  room  to  himself.  It  was  on  the  same 
floor  as  that  on  which  we  slept,  and  the 
second  or  third  door  from  our  room.  It  was 
about  2  o'clock  on  Friday  morning  when  we 
went  to  bed.  In  the  morning  I  rapped  at 
O'Laughlin's  door;  I  peeped  in  at  the  key 
hole,  and  saw  that  he  was  in  the  room  and 
asleep,  and  I  woke  him  up. 

I  do  not  know  for  what  purpose  O'Laugh 
lin  called  to  see  Booth.  After  waiting,  I  sup 
pose,  three-quarters  of  an  hour  at  the  National 
Hotel,  during  which  time  we  had  some  cards 
written  by  a  card-writer,  we  sent  up  some 
cards  to  Mr.  Booth's  room  for  O'Laughlin, 
that  he  might  take  it  as  a  hint,  and  come 
down,  for  we  were  tired  of  waiting.  The 
cards  were  returned  with  the  message  that 
there  was  nobody  in  the  room.  We  left  the 
cards  with  the  clerk  at  the  desk.  O'Laugh 
lin  took  a  stroll  round  the  city  with  us,  and 
then  four  of  us  had  dinner  at  Welch's;  I  do 
not  know  the  hour;  it  was  between  12  and  2. 
After  dinner  we  took  another  stroll.  Whether 
O'Laughlin  was  with  me  or  not  I  can  not 
say.  We  had  been  drinking  pretty  freely, 
all  of  us.  Between  4  and  5  O'Laughlin  went 
with  me  to  a  friend's  house  to  pay  a  visit  to 
a  lady.  I  was  not  well  acquainted  with  the 
streets,  and  I  asked  him  to  go  with  me  to 
find  the  place.  The  lady  invited  us  to  din 
ner.  She  took  our  hats,  and  we  had  to  stay. 
We  had  a  second  dinner  there,  and  left,  I 
suppose,  about  6  o'clock.  We  returned  to 
gether  to  the  Lichau  House,  and  were  found 
there  by  Murphy  and  Henderson.  We  staid 
there  until  about  7  or  8,  and  then  went  to 
Welch's  and  had  supper.  We  were  there 
when  the  procession  of  the  Navy  Yard  men 
passed  up  the  avenue.  That  was  perhaps 
between  8  and  9  o'clock.  After  that  I  went 
back  to  the  Lichau  House,  and  sat  there  until 
I  went  to  bed.  O'Laughlin  was  there  the 
best  part  of  the  evening.  I  was  there  when 
I  heard  of  the  assassination.  It  was,  I  be 
lieve,  about  10  o'clock  when  I  saw  O'Laugh 
lin  go  out  with  Mr.  Fuller,  but  I  could  not 
say  whether  I  saw  him  there  when  the  news 
came  or  not.  Mr.  Henderson  was  in  the  bar 
room,  I  believe,  but  Mr.  Murphy  had  left  us 
on  the  avenue  previous  to  that. 

When  we  came  down  on  Thursday,  it  was 
our  intention  to  go  back  on  Friday ;  at  least 
I  understood  so.  I  guess  it  was  the  liquor 

15 


we  had  aboard  that  kept  us.  We  did  start 
to  return  by  the  11  o  clock  Saturday  morning 
train.  We  went  as  far  as  the  depot,  and  Mr. 
Henderson  got  the  tickets.  O'Laughlin 
wanted  to  go,  and  I  said  to  Mr.  Henderson, 
"If  you  press  Mike,  he  will  stay  until  the 
afternoon."  So  we  all  concluded  to  stay 
until  the  next  train,  at  3  o'clock  in  the  after 
noon. 

Q.  During  this  visit  did  you  see  any  thing 
in  Mr.  O'Laughlin  that  betrayed  a  knowledge 
of  any  thing  desperate  which  was  to  take 
place  ? 

Assistant  Judge  Advocate  BINGHAM  object 
ing  to  the  question,  it  was  varied  as  fol 
lows  : 

Q.  During  this  visit,  state  what  hia  conduct 
was. 

A.  His  conduct  was  the  same  as  I  usually 
saw  him — jovial  and  jolly  as  any  of  the  rest 
of  the  crowd. 

Q.  In  good  spirits  ? 

A.  Yes,  sir ;  he  was  particularly  so  coming 
down  in  the  cars  with  us  that  Thursday  even 
ing. 

Q.  No  nervousness? 

A.  No,  sir. 

When  O'Laughlin  got  to  Baltimore  and 
went  to  his  house,  he  went  up  stairs,  I  sup 
pose,  to  see  his  mother.  On  returning  he  said 
he  would  not  stay  at  home  that  night.  The 
remark  he  made  was,  that  he  would  not  like 
to  be  arrested  in  the  house ;  that  it  would  be 
the  death  of  his  mother.  I  told  O'Laughlin 
that  I  thought  it  best  for  him  to  stay  at  home 
until  the  parties  who  were  looking  for  him 
came  again;  but  he  said  no,  it  would  be  the 
death  of  his  mother  if  he  was  taken  in  the 
house. 

Re-examined  by  the  JUDGE  ADVOCATE. 

We,  all  four  of  us,  returned  to  the  Metro 
politan  Hotel  between  1  and  2  o'clock,  I  sup 
pose,  when  we  went  to  bed ;  that  is,  on  Friday 
morning.  After  having  supper  on  the  Thurs 
day  evening,  we  went  to  see  the  illumination, 
and  walked  a  considerable  distance  up  the 
avenue.  After  returning,  we  went,  at  the 
invitation  of  Mr.  Henderson,  to  the  Canter 
bury  Music  Hall.  O'Laughlin  was  not  sep 
arated  from  us  during  that  night. 

JAMES  B.  HENDERSON. 
For  the  Prosecution. — May  15. 

I  am  acquainted  with  the  prisoner,  Mr. 
O'Laughlin.  I  saw  him  in  this  city  on 
Thursday  and  Friday,  the  13th  and  14th  of 
April.  I  do  not  know  whether  he  visited  J. 
Wilkes  Booth  on  either  of  those  days,  but  he 
told  me  on  Friday  that  he  was  to  see  him 
that  morning. 

Cross-examined  by  MR.  Cox. 

He  only  told  me  he  was  to  see  Booth,  but 
did  not  say  what  for.  I  can  not  tell  exactly 
whether  he  said  he  had  an  engagement. 


226 


THE    CONSPIRACY   TRIAL. 


DAVID  STANTON. 
For  the  Prosecution. — May  16. 

I  have  seen  that  man  with  the  black 
moustache  before,  [pointing  to  the  accused, 
Michael  O'Laughlin.]  I  saw  him  on  the 
13th  of  April,  the  night  before  the  assassina 
tion,  at  the  house  of  the  Secretary  of  War. 
I  saw  him  pass  in  the  door,  and  take  a  po 
sition  on  one  side  of  the  hall.  I  asked  him 
what  his  business  was,  and  he  asked  me 
where  the  Secretary  was,  and  I  told  him  he 
was  standing  on  the  steps.  He  said  nothing 
further,  but  remained  there  some  minutes, 
until  finally  I  requested  him  to  go  out.  He 
followed  me  out  as  far  as  the  gate  on  the 
left-hand  side  of  the  house,  and  that  was 
the  last  I  saw  of  him.  He  did  not  ask  for 
any  one  else  besides  the  Secretary,  nor  did 
he  explain  why  he  was  there.  At  first  I 
supposed  he  was  intoxicated,  but  I  found 
out,  after  having  some  conversation  with 
him,  that  he  was  not. 

General  Grant  was  in  the  parlor.  He 
and  the  Secretary  were  being  serenaded. 
O'Laughlin  could  see  General  Grant  from 
his  position.  He  did  not  inquire  for  any 
one  but  the  Secretary,  and  after  I  pointed 
him  out  he  did  not  go  to  him,  and  did  not 
tell  me  what  his  business  was.  I  did  not 
see  him  go  away  from  the  house;  there  was 
euch  a  crowd  there.  That  was,  I  presume, 
about  half-past  10  o'clock. 

Cross-examined  by  MR.  Cox. 

That  was  the  first  time  I  ever  saw  this 
man,  and  I  did  not  see  him  again  until  I 
saw  him  on  the  Monitor  as  a  prisoner,  on 
the  day  on  which  Booth's  body  was  taken 
away  from  the  vessel.  I  can  not  be  sure  as 
to  the  exact  time  when  I  first  saw  the  man  ; 
the  fireworks  commenced  at  about  9  o'clock, 
and  lasted  about  an  hour  and  a  half,  and  it 
was  after  they  were  over.  He  was  dressed 
in  a  suit  of  black ;  dress-coat,  vest  and 
pants,  and  his  hat,  which  was  a  black  slouch 
hat,  I  think,  he  had  in  his  hand.  The 
hall  was  very  well  lit  up;  the  parlor,  where 
General  Grant  was  sitting,  was  also  lit  up, 
and  I  was  directly  in  front  of  him  when  1 
addressed  him. 

He  was  inside  of  the  door,  about  ten  feet, 
standing  next  to  the  library  door.  He  was 
about  five  feet  four  inches  in  hight.  When 
I  saw  him  on  the  Monitor  he  stood  up,  but  I 
had  an  indistinct  view  of  him  there,  as  it 
was  dark.  I  thought  the  man  was  intoxi 
cated,  from  the  way  he  came  into  the  house. 
I  inquired,  before  I  went  to  him,  of  differ 
ent  members  of  the  family,  if  they  knew 
him.  Finding  they  did  not  know  him,  I 
addressed  him,  and  requested  him  to  go  out, 
which  he  did,  going  after  me.  There  were 
a  good  many  people  about.  The  Secretary 
of  War  and  Major  Knox  were  on  the  door 
steps,  and  this  man  had  got  behind  them. 
He  had,  I  think,  the  same  moustache  and 


beard  that  he  has  now;  I  see  no  change, 
with  the  exception  of  that  caused  by  the 
want  of  shaving. 

MAJOR  KILBURN  KNOX. 
For  the  Prosecution — May  16. 

I  was  at  the  house  of  the  Secretary  of 
War,  in  this  city,  on  the  evening  of  the  13th 
of  April  last,  and  saw  there  a  man  whom  I 
recognize  among  the  prisoners.  There  he  is, 
[pointing  to  the  accused,  Michael  O'Laugh 
lin.]  I  left  the  War  Department  at  10 
o'clock,  after  the  illumination  there  was 
over,  and  walked  up  to  the  Secretary's  house. 
There  was  a  band  playing  at  the  house,  and 
on  the  steps  were  General  Grant,  Mrs.  Grant, 
the  Secretary,  General  Barnes  and  his  wife, 
Mr.  Knapp  and  his  wife,  Miss  Lucy  Stan- 
ton,  and  two  or  three  small  children.  I  waa 
standing  on  the  upper  steps,  talking  to  Mrs. 
Grant  and  the  General.  Some  fireworks 
were  being  set  off  in  the  square  ooposite, 
and  I  stepped  down  a  little  to  allow  the 
children  to  see  them.  I  got  down  on  the 
step,  I  think,  next  to  the  last  one,  leaning 
against  the  railing,  and  this  man  [O'Laugh 
lin]  came  up  to  me,  after  I  had  been  there 
ten  minutes  probably,  and  said,  "  Is  Stanton 
in?"  Said  I,  "I  suppose  you  mean  the 
Secretary?"  He  said,  "Yes."  I  think  he 
made  the  remark,  "I  am  a  lawyer  in  town; 
I  know  him  very  well."  I  was  under  the 
impression  he  was  under  the  influence  of 
liquor.  I  told  him  I  did  not  think  he  could 
see  him  then,  and  he  walked  to  the  other 
side  of  the  steps,  and  stood  there  probably 
five  minutes.  I  still  staid  there,  I  suppose, 
for  about  five  minutes,  and  he  walked  over 
to  me  and  said,  "Is  Mr.  Stanton  in?"  and 
then  said,  "  Excuse  me,  I  thought  you  were 
the  officer  on  duty  here."  Said  I,  "  There  is 
no  officer  on  duty  here."  He  then  walked 
on  to  the  other  side  of  the  steps,  and  walked 
inside  of  the  hall,  the  alcove,  and  stood  on 
the  inside  step.  I  saw  him  standing  there, 
and  I  walked  over  to  Mr.  David  Stanton 
and  said,  "  Do  you  know  that  man  ?"  He 
said  he  did  not,  I  said  to  him,  "  He  says  he 
knows  the  Secretary  very  well,  but  he  is 
under  the  influence  of  liquor,  and  you  had 
better  bring  him  out."  Mr.  David  Stanton 
walked  up  to  him,  talked  to  him  a  few  mo 
ments,  and  then  took  him  down  the  steps. 
He  went  off,  and  I  did  not  notice  him  again. 
He  did  not  say  any  thing  about  General 
Grant.  By  that  time,  I  think,  the  General 
had  gone  into  the  parlor. 

I  think  the  Secretary  stood  on  the  stepa 
outside,  and  this  man  stood  behind  the  Sec 
retary,  and  from  where  he  stood  he  could 
see  into  the  parlor.  On  the  left-hand  side 
of  the  hall,  going  in,  is  the  library;  on  the 
other  side  is  the  parlor  door.  He  stood  on 
the  side  next  to  the  library,  and  in  that  posi 
tion  he  could  have  looked  into  the  parlor, 
and  seen  who  was  in  there,  through  the  door 


TESTIMONY   CONCERNING    MICHAEL    0  LAUGHLIN. 


227 


The  whole  house  was  lighted  up,  and  I  feel 
pretty  certain  that  the  prisoner,  O'Laughlin, 
is  the  man  I  saw. 

Cross-examined  by  MR.  Cox. 

I  do  not  recollect  whether  it,  was  moon 
light  or  dark  that  evening.  There  was  a 
great  crowd  round  the  Secretary's  house,  and 
close  up  to  the  steps.  I  did  not  notice  the 
man  until  he  walked  up  on  the  steps  and 
spoke  to  me,  and  after  he  went  out  again  I 
saw  him  no  more.  I  did  not  go  inside  the 
hall  while  he  was  there.  Secretary  Stanton 
was  on  the  left-hand  side  of  the  steps,  talk 
ing  to  Mrs.  Grant,  and  the  man  went  up  on 
the  right-hand  side  past  them,  and  went  in 
and  took  a  place  on  the  left-hand  side.  He 
had  on  a  black  slouch  hat,  a  black  frock- 
coat,  and  black  pants;  as  to  his  vest  I  can 
not  say.  That  was  while  the  fireworks  were 
going  on.  I  had  never  seen  the  man  before. 
I  have  seen  him  once  since  in  this  prison;  I 
came  here  a  week  ago  last  Sunday  for  the 
purpose  of  identifying  him. 

MR.  JOHN  C.  HATTER. 

For  the  Prosecution. — May  16. 

1  recognize  that  man,  sitting  back  there, 
[pointing  to  the  prisoner,  O'Laughlin.]  He 
is  the  man  I  saw  at  Secretary  Stantori's 
house  at  about  9  o'clock,  or  after,  on  the 
night  of  the  illumination,  the  13th  of  April. 

I  was  standing  on  the  steps  looking  at  the 
illumination,  and  this  man  [O'Laughlin] 
approached  me,  and  asked  me  if  General 
Grant  was  in.  I  told  him  he  was.  He  said 
lie  wished  to  see  him.  Said  I,  "  This  is  no 
occasion  for  you  to  see  him.  If  you  wish 
to  see  him,  step  out  on  the  pavement,  or  on 
the  stone  where  the  carriage  stops,  and  you 
can  see  him."  That  was  all  that  occurred 
between  us.  He  did  not  attempt  to  go  into 
the  house.  When  he  spoke  to  me,  he  left 
the  steps  and  walked  away  toward  the  tree- 
box,  talking  as  he  went,  but  I  did  not  under 
stand  what  he  was  saying.  He  seemed  to 
reflect  over  something,  and  came  back;  then 
he  walked  off,  and  1  did  not  see  him  any 
more.  The  house  was  illuminated,  and  it 
was  pretty  light  outside,  too. 

Cross-examined  by  MR.  Cox. 

I  am  a  sergeant  in  the  Adjutant-General's 
eervice,  at  the  War  Department,  on  duty  at 


the  Secretary's  room.  To  my  knowledge  I 
had  never  seen  the  man  before  that  evening. 
The  next  time  I  saw  him  was  last  Sunday 
week,  in  prison,  in  this  building.  I  came 
down  here  with  Major  Eckert  and  Major 
Knox.  I  did  not  know  what  I  was  coming 
for;  but  when  I  was  inside  the  room,  and 
looking  round,  I  saw  that  man,  and  I 
thought  to  myself,  "I  see  the  object  of  my 
coming  down." 

The  first  time  I  saw  him  it  was  very  light, 
and  he  had  on  a  dark  suit  of  clothes,  with  a 
heavy  moustache,  black,  and  an  imperial, 
and  the  way  I  took  so  much  notice  of  him 
was,  while  I  was  speaking  to  him  he  was 
standing  a  little  lower  down,  and  I  was 
looking  right  in  his  face. 

He  wore  a  dark  slouch  hat,  a  little  low, 
and  dark  dress-coat  and  dark  pantaloons.  I 
should  judge  him  to  be  about  five  feet  four 
or  five  inches.  There  was  a  crowd  about 
the  house,  come  to  serenade  the  Secretary ; 
four  or  five  bands  were  there.  The  Secre 
tary  was  in  the  parlor  with  General  Grant; 
they  had  not  come  out  then ;  there  was  no 
body  on  the  steps  but  me.  Both  doors  were 
open,  the  front  door  and  another  door  like 
the  front  entry,  and  the  gas  was  fully  lit  all 
around. 

MARCUS  P.  NORTON. 
For  the  Prosecution. — June  3. 

From  about  the  10th  of  January  until 
about  the  10th  of  March,  I  was  stopping  at 
the  National  Hotel  in  this  city.  I  knew  J. 
Wilkes  Booth,  having  seen  him  several  times 
at  the  theater.  I  saw  the  prisoners,  George 
A.  Atzerodt  and  Michael  O'Laughlin,  at  the 
National  Hotel  prior  to  the  inauguration  of 
President  Lincoln,  in  company  with  Booth. 
I  saw  Atzerodt  twice,  and  O'Laughlin  four 
or  five  times,  I  believe,  in  conversation  with 
him. 

Cross-examined  by  MR.  Cox. 

When  I  saw  O'Laughlin  talking  with  Booth 
at  the  National  Hotel,  he  was  in  the  presence 
of  other  people,  and  in  the  hall,  but  there 
was  no  one  else  in  company  with  them.  I 
heard  no  portion  of  the  conversation.  It 
was  during  the  two  months  I  was  there,  but 
I  can  not  fix  the  precise  date. 

See  also  testimony  of 

Marcus  P.  Norton page  177 

Eaton  G.  Horner "     234 


228 


THE    CONSPIRACY    TllIAL. 


DEFENSE  OF  MICHAEL  O'LAUGHLIN. 


BERNARD  J.  EARLY. 

Recalled  for  the  Defense. — May  25. 

By  MR.  Cox. 

\Ve  left  Baltimore  on  Thursday,  the  13th 
of  April,  by  the  half-past  3  o'clock  train,  and 
arrived  here  about  half-past  5.  After  leaving 
the  cars,  we  went  along  the  avenue  to  a 
restaurant  kept  by  Lichau,  I  think  it  is 
called  Bullman's  Hotel.  We  remained  there 
but  a  short  time.  Mr.  Henderson  went  into 
the  barber's  shop  to  get  shaved;  while  he 
was  in  tliere,  Mr.  O'Laughlin  asked  me  to 
walk  down  as  far  as  the  National  Hotel  with 
him.  I  did  so;  when  there,  he  walked  up 
to  the  desk  and  inquired  for  some  person, 
and  told  me  to  wait;  he  would  detain  me 
only  a  few  minutes.  I  told  him  that  I  did 
not  like  to  wait;  that  I  did  not  want  to  miss 
the  rest  of  the  party.  He  said  he  would 
not  detain  me  more  than  ten  or  fifteen 
minutes,  and  left  me  standing  in  the  front 
door.  He  then  went  in,  and  returned  again 
in  from  three  to  five  minutes.  Henderson 
had  not  got  through  with  his  shaving  by  the 
time  we  got  back.  We  all  four  then  walked 
up  the  avenue,  I  guess  as  far  as  Eleventh 
Street;  then  returned,  and  went  into  Welch's 
dining-saloon  for  supper.  This  saloon  is 
over  Wall  &  Stevens'.  We  left  there  about 
half-past  7,  and  returned  to  Rullman's  Hotel, 
and  proceeded  from  there  down  as  far  as  the 
corner  of  Third  Street,  where  O'Laughlin 
and  Murphy  left  Henderson  and  me,  saying 
they  were  going  around  to  see  Mr.  Hoffman, 
who  was  sick,  and  who  lived  on  B  Street. 
They  returned  in  ten  or  fifteen  minutes  with 
Mr. 'Daniel  Loughran.  All  five  of  us  then 
started  up  the  avenue  to  see  the  illumina 
tion.  About  Seventh  Street,  one  of  the  party 
complained  of  having  sore  feet,  and  said  he 
would  not  go  any  further.  Seeing  a  notice 
of  the  Canterbury  Music  Hall  performances, 
we  all  went  there,  and  got  in  about  at  the  end 
of  the  first  piece.  It  was  then  getting  on 
for  9  o'clock.  We  remained  there  till  10 
o'clock,  when  we  proceeded  to  the  Metropoli 
tan  Hotel,  and  from  there  down  to  Lichau' s 
or  Rullman's  Hotel,  reaching  there  about 
half-past  10.  O'Laughlin  was  with  us  all 
the  time.  We  remained  at  the  hotel  about 
an  hour,  I  suppose.  As  we  were  there  on 
the  steps,  Mr.  Grillet  passed  by  with  a  lady, 
and  spoke  to  Mr.  O'Laughlin.  We  left  there 
with  Mr.  Giles,  one  of  the  men  of  the  house, 
and  went  down  as  far  as  Second  Street.  I 
believe  Mr.  O'Laughlin  is  acquainted  at  the 
saloons  on  the  corner  of  B  Street  and  Second. 
There  was  a  dance  or  some  thing  going  on 
there.  He  took  the  lead  over  there  and  we 


followed  him.  One  of  the  party  bought 
tickets  to  go  back  into  the  ball.  We  did 
not  stay  there  more  than  about  an  hour;  we 
got  tired  of  the  affair  and  came  out.  We 
then  went  up  the  avenue,  stopped  at  several 
places,  and  went  into  the  Metropolitan  Hotel, 
between  1  and  2  o'clock.  We  went  out 
again  for  about  five  minutes,  and  returned  at 
about  the  hour  of  2,  when  we  went  up  stairs 
to  bed.  Mr.  O'Laughlin  was  with  us  all 
that  night. 

I  do  not  know  where  Mr.  Stanton's  resi 
dence  is;  but  I  know  the  situation  of  the 
Treasury  Building. 

Q.  Mr.  Stanton's  house  is  six  squares 
north  of  that,  and  one  square  east ;  I  ask 
you  if  it  is  possible  that  Mr.  O'Laughlin 
could  have  been  at  Mr.  Stanton's  at  9 
o'clock,  or  at  any  time  between  that  and  11 
o'clock. 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question,  and  it  was  waived. 

WITNESS.  On  Friday  night,  O'Laughlin 
was  in  Rullman's  Hotel  from  about  supper 
time  until  he  went  out  with  Mr.  Fuller.  We 
had  supper  at  Welch's  at  about  8  o'clock, 
and  I  suppose  we  staid  there  from  about 
three-quarters  of  an  hour  to  an  hour.  From 
Welch's  we  went  to  Rullman's.  Whether 
Mr.  O'Laughlin  went  out  with  Mr.  Fuller 
before  or  after  the  assassination  I  can  not 
say,  but  I  distinctly  remember  his  going  out 
with  him. 

Mr.  O'Laughlin  had  on  a  dahlia  coat — 
something  of  a  frock — a  double-breasted  vest, 
and  pantaloons  of  the  same  material — a 
Scotch  plaid,  purple  and  green.  I  made 
these  things  for  him. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

On  Friday  evening,  about  10  o'clock,  I 
suppose,  we  were  all  under  the  influence  of 
liquor.  We  might  have  drank  as  many 
as  ten  times;  it  was  mostly  ale,  though,  that 
Mr.  O'Laughlin  and  myself  drank.  I  hardly 
ever  saw  him  drink  liquor.  I  was  not 
separated  from  O'Laughlin  until  he  went  out 
from  Rullman's  Hotel.  That  was  about  10 
o'clock,  or  a  little  after.  I  next  saw  him 
again  on  Saturday  morning.  Rullman's 
Hotel  is  between  Third  and  Four-and-a-half 
Streets. 

By  MR.  Cox. 

I  have  very  seldom,  if  ever,  seen  O'Laugh 
lin  drink  whisky.  I  have  never  seen  him 
intoxicated  but  twice.  I  have  known  him 
slightly  for  about  four  years,  and  intimately 
for  the  last  ten  months. 


DEFENSE    OF   MICHAEL    o'LAUGHLIN. 


220 


EDWARD  MURPHY. 
For  the  Defense,— May  25. 

By  M.  Cox. 
I  reside  in  Baltimore.  On  the  13th  of 
April  last,  in  company  with  James  B.  Hen 
derson,  who  proposed  the  trip,  Michae 
O'Laughlin,  and  Barney  Early,  I  came  to 
Washington.  We  arrived  here  about  5  in 
the  afternoon.  From  the  depot  we  went  to 
{tollman's,  had  a  drink  or  two,  and  startec 
for  the  Metropolitan.  We  went  to  severa 
places;  took  supper  at  Welch's,  somewhen 
about  8  o'clock.  We  were  there  about  half 
an  hour,  and  then  came  down  to  Rullman's 
again.  There  we  met,  I  think,  John  Lough 
ran,  and  took  a  walk  up  the  street  to  see 
the  illumination  of  the  Treasury,  and  stoppec 
on  the  corner  of  Ninth  Street  and  the  avenue. 
After  standing  debating  there  some  time,  we 
went  to  the  Canterbury  Music  Hall,  staid 
there  some  time,  walked  down  to  the  Metro 
politan  Hotel,  and  then  came  back  to  Hull 
man's.  It  was  about  a  quarter  to  10  when 
we  got  into  Rullman's.  O'Laughlin  was 
with  us  all  the  time.  Then  we  went  up  to 
Platz's  and  back  again.  That  brought  us 
to  about  half-past  11  or  12.  We  then  started 
down  to  Riddle's,  on  the  corner  of  B  and 
Second  Street,  where  we  staid  until  half-past 
12  or  1  ;  from  there  we  went  to  Dubant's,  on 
the  corner  of  Sixth  and  the  avenue,  where 
we  took  a  hack,  and  went  to  the  corner  of 
Tenth  and  the  avenue.  There  is  an  all- 
night  house  there,  and  we  went  in  and  got 
some  refreshments.  I  suppose  it  was  about 
half-past  1  when  we  were  there.  It  was 
about  2  o'clock  when  we  got  to  the  Metro 
politan  and  registered  our  names.  Before 
going  to  bed,  we  went  across  the  street  to 
Gilson's  and  got  a  drink.  It  made  it  about 
half-past  2  when  we  got  to  bed.  Michael 
O'Laughlin  was  with  us  all  the  time  from 
leaving  the  cars  until  we  all  went  to  bed, 
except  that  when  we  first  came  down,  while 
Henderson  was  being  shaved.  O'Laughlin 
and  Early  left  us  for  about  five  minutes  and 
went  as  far  as  the  National  Hotel.  They 
were  back  before  Henderson  was  shaved; 
were  not  gone  more  than  five  or  six  minutes. 
I  think  I  know  where  the  house  of  Mr. 
Stanton,  the  Secretary  of  War,  is,  and 
O'Laughlin  was  no  nearer  to  it  that  night 
than  the  corner  of  Ninth  and  the  avenue. 

I  was  with  him  all  day  Friday  and  up  to 
8  o'clock  that  night,  when  I  went  to  the 
Metropolitan  Hotel,  and  did  not  see  him 
again  until  Saturday  morning.  On  Saturday 
I  was  with  him  from  9  o'clock  in  the  morn 
ing  till  we  went  to  the  depot  to  go  to  Balti 
more.  I  did  not  know  of  the  assassination 
till  9  o'clock  Saturday  morning.  I  never 
saw  O'Laughlin  in  better  spirits  in  my  life 
than  he  was  during  this  trip.  When  we 
started  from  Baltimore,  it  was  our  intention 
to  go  up  on  Friday  afternoon,  but  we  staid  i 
in  Washington  at  the  solicitation  of  Mr. 


Henderson,  who  wanted  to  see  a  lady  friend 
of  his  that  night,  and  the  whole  party  staid 
on  that  account.  I  remember  Mr.  Grillet 
joined  us  on  the  steps  of  the  Rullman  Hotel 
on  Thursday  night. 

Recalled  for  the  Defense. — May  25. 
By  MR.  Cox. 

I  saw  O'Laughlin  in  Baltimore  on  the 
Sunday  after  the  assassination,  and  he  told 
me  that  the  officers  were  in  search  of  him, 
and  that  he  was  going  to  surrender  himself 
on  the  Monday  following. 

JAMES  B.  H*ENDERSON 

Recalled  for  the  Defense. — June  12. 

By  MR.  Cox. 

I  am  an  Ensign  in  the  United  States  Navy. 
I  have  been  acquainted  with  the  prisoner, 
Michael  O'Laughlin,  for  about  six  years.  I 
proposed  to  him  that  we  should  come  to 
Washington  on  Thursday,  the  13th  of  April, 
and  we  left  Baltimore  at  3:30  on  that  after 
noon,  arriving  in  this  city  between  5  and  6, 
I  judge.  On  our  arrival,  we  came  up  the 
avenue,  and  stopped  at  the  Lichau  House, 
or  Rullman's  Hotel.  I  went  into  the  barber's 
shop  adjoining  to  get  shaved,  and  O'Laugh 
lin  went  up  the  street  in  the  mean  time,  but 
he  returned  before  I  had  finished  shaving, 
and,  with  the  exception  of  that,  he  was  not 
out  of  my  company  the  whole  evening  until 
bedtime.  I  went  up  the  avenue  to  look  at 
the  illumination.  We  did  not  go  up  as  far 
as  Ninth  Street.  We  stopped  at  the  corner 
of  Seventh,  and  then  went  back  to  the  Can 
terbury  Music  Hall.  We  reached  there 
about  9  o'clock;  after  staying  there  perhaps 
three-quarters  of  an  hour,  we  returned  to 
Rullman's  Hotel.  We  got  there  between  10 
and  11,  and  staid  about  half  an  hour  there. 
[  retired  for  the  night,  at  the  Metropolitan 
Hotel,  at  between  1  and  2  o'clock  in  the 
norning. 

The  avenue  was  very  much  crowded.  It 
-vas  almost  impossible  for  a  person  to  get 
ilong,  and  we  did  not  go  further  west  than  a 
ittle  beyond  Seventh  Street,  on  Thursday 
evening;  O'Laughlin  was  not  any  where  in 
lie  neighborhood  of  Franklin  Square — Mr. 
Stanton's;  he  was  with  me  all  the  time,  except- 
.vhen  I  was  being  shaved.  I  do  not  know 
certainly  whether  he  slept  at  the  Metropolitan 
hat  night;  I  saw  him  in  his  room,  and  was 
here  the  next  morning  when  they  called  him. 
On  the  Friday  afternoon  he  left  me  in  com- 
>any  with  Mr.  Early,  I  think,  but  I  met  him 
igain  in  the  evening  at  Rullman's  Hotel.  He 
vas  there  with  me  until  10  o'clock  I  should 
hink,  and  then  he  went  out  with  a  man 
lamed  Fuller.  He  was  there  when  the 
icws  of  the  President's  assassination  came. 
Our  party  had  arranged  to  return  to  Balti 
more  on  Friday  morning,  but  I  proposed  to 
them  to  stay  until  Friday  evening. 


230 


THE    CONSPIRACY   TRIAL. 


Cross-examined  by  the  JUDGE  ADVOCATE. 

I  do  not  know  the  name  of  the  street  on 
which  Mr.  Stanton  resides,  but  I  have  been 
shown  the  house.  It  was  impossible  for 
O'Laughlin  to  have  been  there  on  the  even 
ing  of  Thursday,  the  13th  of  April,  for  I  was 
with  him  the  whole  evening.  There  was  a 
good  deal  of  free  drinking  that  night  by  our 
party,  and  it  was  continued  until  a  late 
hour.  It  would  be  impossible  for  me  to  sav 
how  many  drinks  we  had;  I  should  think 
not  more  than  ten.  They  were  mostly  taken 
at  hotels  and  restaurants  on  the  avenue.  One 
of  the  party  was  drunk — Mr.  Early — but  the 
others  were  sober  enough,  I  think,  to  be  con 
scious  of  each  other's  movements,  or  presence 
or  absence. 

O'Laughlin  left  me  but  for  a  short  time 
on  our  arrival  in  Washington,  while  I  got 
shaved,  and  told  rue  lie  had  been  to  see  Booth. 
That  was  between  5  and  6  o'clock.  I  knew 
of  his  going  to  see  Booth  the  next  morning 
at  the  National  Hotel,  and  I  went  there  to 
call  for  him,  but  found  he  had  left.  On  going 
back  to  Rullman's,  I  found  he  was  there, 
and  he  said  he  had  been  to  the  National 
Hotel,  but  Booth  was  out.  I  do  not  know 
of  any  other  attempt  on  his  part  to  see 
Booth,  nor  do  I  know  his  object  in  seeking 
that  interview. 

By  MR.  Cox. 

O'Laughlin  did  not  say  any  thing  to  me 
about  Booth  owing  him  money,  and  that  he 
wanted  to  get  some  from  him.  He  only  told 
me  that  he  had  been  to  see  him;  he  did  not 
say  whether  he  had  seen  him  or  not;  and  on 
Friday  he  said  that  '«e  had  been  to  see  him, 
and  he  was  not  a!  nome. 

By  the  JUDGE  ADVOCATE. 

I  had  no  particular  reason  for  not  return 
ing  to  Baltimore  on  Friday;  I  wanted  to  stay 
a  little  while  myself,  and  asked  the  others 
to  stay.  O'Laughlin  himself  had  not  spoken 
of  staying  over.  It  was  on  the  Wednesday 
that  we  arranged  to  come  to  Washington  on 
the  Thursday;  1  proposed  that  we  should  all 
come  down  on  that  day.  I  do  not  remem 
ber  that  O'Laughlin  made  any  suggestions 
about  it;  I  think  I  asked  him  to  comedown. 
I  had  been  on  terms  of  intimate  association 
with  him  for  only  about  a  week  previous  to 
that. 

DANIEL  LOUGH  RAN. 

For  the  Defense. — May  25. 

By  MR.  Cox. 

I  reside  in  this  city.  I  have  known  the 
accused,  Michael  O'Laughlin,  for  eighteen  or 
twenty  months.  On  Thursday  evening,  the 
13th  of  April,  at  about  a  quarter  past  7,  I 
8S,w  him  in  front  of  Rullman's  Hotel,  on 
Pennsylvania  Avenue,  in  company  with  Lieu 
tenant  Henderson,  Edward  Murphy,  and  Ber 
nard  Early.  I  did  not  join  them  then;  I  went 


home  to  supper.  O'Laughlin  and  Murphy 
came  to  my  boarding-house,  and  we  met 
Henderson  and  Early  in  front  of  Adams'  Ex 
press  Office,  on  Pennsylvania  Avenue;  that 
was  about  8  o'clock.  After  we  joined  them, 
we  went  into  Platz's  Restaurant,  and  from 
there  to  RullrnaiVs  Hotel.  From  Rullman's 
we  went  up  to  the  corner  of  Pennsylvania 
Avenue  and  Ninth ;  it  was  about  9  "o'clock 
then,  for  I  looked  at  my  watch.  We  then 
went  into  the  Canterbury,  staid  there  until 
10  or  perhaps  half-past ;  from  there  we  went 
to  the  Metropolitan  Hotel,  and  then  to  Rull 
man's,  reaching  there  probably  at  half-past 
10;  perhaps  a  little  earlier  or  la'ter.  Michael 
O'Laughlin  was  with  me  from  the  time  we 
joined  Henderson  and  Early  until  we  went 
down  to  Rullman's  Hotel. 

I  do  not  know  where  Mr.  Stanton's  house 
is,  but  I  know  where  Franklin  Square  is, 
and  I  know  that  O'Laughlin  could  not  have 
been  up  there  during  that  time.  Mr.  Grillet 
joined  us  at  Rullman's  at  about  half-past  10, 
and  I  was  with  them  until  after  12  o'clock. 
O'Laughlin  was  there  all  that  time. 

I  saw  them  the  next  evening,  •  I  judge,  be 
tween  7  and  8,  at  Rullman's  Hotel;  1  was 
there  until  perhaps  half-past  9.  I  do  not 
know  that  they  went  to  Welcker's;  1  heard 
them  speaking  about  going  to  supper,  but 
where  they  went  I  do  not  know,  nor  do  I 
know  whether  O'Laughlin  went  to  supper. 
I  did  not  miss  him  from  the  time  I  went 
there  until  about  half-past  9,  when  I  went 
home,  and  saw  him  no  more  that  night. 
O'Laughlin  wore  a  plaid  vest  and  pants;  the 
pants  he  wears  now  look  like  the  ones.  I 
think  he  had  on  a  black  slouch  hat. 

By  the  COURT. 

We  occupied  different  seats  at  the  Canter 
bury  play-house;  two  of  us  sat  on  one  seat, 
and  the  other  two  sat  right  behind.     I  saw 
hem  there  all  the  time,  and  we  all  left  to 
gether. 

By  MR.  Cox. 

O'Laughlin  seemed  very  lively.  The  re- 
nark  was  made  that  they  had  come  down 
Tom  Baltimore  to  see  the  illumination  and 
lave  a  good  time.  I  do  not  think  he  was  in 
toxicated  on  Thursday  evening;  he  was  lively 
and  merry,  but  I  can  not  say  he  was  tight 
or  drunk. 

GEORGE  GRILLET. 

For  the  Defense. — May  25. 

By  MR.  Cox. 

I  reside  in  Washington,  and  am  solicitor 
"or  the  New  York  Cracker  Bakery,  96  Louis- 
ana  Avenue.  I  have  known  the  accused, 
Michael  O'Laughlin,  one  or  two  years.  I 
saw  him  on  the  steps  of  Rullman's  Hotel, 
>etween  10  and  half-past  10,  on  the  night  of 
Thursday,  the  13th  of  April,  and  he  bowed 
o  me.  Lieutenant  Henderson  and  Edward 
Murphy  were  with  him,  and  Henry  Purdy, 


DEFENSE   OF  MICHAEL   O'LAUGHLIN. 


231 


the  superintendent  of  the  house,  was  on  the 
porch,  I  believe.  After  I  had  escorted  home 
the  lady  that  was  with  me,  I  returned  to  the 
house  and  joined  the  party,  and  did  not  leave 
them  until  between  12  and  1  o'clock.  I  saw 
O'Laughlin  the  next  morning,  and  then  not 
until  8  o'clock  at  night;  I  staid  with  them 
until  between  11  and  12.  I  was  at  the  Lichau 
House  or  Rullman's  Hotel  when  I  heard 
the  news  of  the  President's  assassination. 
O'Laughlin  was  there  at  the  time.  I  did  not 
notice  how  he  behaved  when  he  heard  of  the 
assassination.  He  left  shortly  after  the  news 
came  that  the  President  was  killed;  he  and 
a  man  named  Fuller  left  together.  On  that 
evening  1  know  he  had  on  a  Scotch  plaid  vest 
and  pants;  I  can  not  swear  positively  to  the 
coat,  but  he  had  a  habit  of  wearing  a  sack- 
coat 

HENRY  E.  PURDY. 

For  the  Defense.— May  25. 
By  MR.  Cox. 

I  am  superintendent  of  Rullman's  Hotel 
in  this  city.  1  saw  the  accused,  Michael 
O'Laughlin,  at  about  half-past  10  on  the 
night  of  Thursday,  the  13th  of  April,  with 
George  Grillet,  Loughran,  Murphy,  and  Early ; 
1  do  not  know  where  they  came  from.  I  was 
principally  in  the  kitchen  and  the  dining- 
room,  and  walking  around;  in  the  bar  only 
occasionally.  Whenever  I  was  in  the  bar 
they  were  there,  until  a  few  minutes  after  12 
o'clock,  when  I  closed  up,  and  they  went  out 
at  the  side  door.  I  am  confident  that  O'Laugh 
lin  was  with  them  when  they  came  there  at 
about  half  past  10;  I  have  known  him  about 
three  months.  I  saw  them  again  on  Friday 
at  the  same  place. 

I  was  standing  in  front  of  the  door  when 
I  heard  of  the  assassination,  and  I  went  in 
and  told  them  what  I  had  just  heard  from 
a  cavalry  sergeant;  that  the  President  had 
been  assassinated,  and  that  Booth  was  the 
one  who  had  done  it.  They  were  all  stand 
ing  together  drinking.  O'Laughlin  was  right 
at  the  end  of  the  bar,  and  he  was  the  one  I 
first  spoke  to  when  I  went  in. 

When  I  went  in  he  seemed  surprised,  and 
said  he  had  been  in  Booth's  company  very 
often,  and  people  might  think  he  had  some 
thing  to  do  with  it.  I  do  not  remember  when 
he  individually  left  that  night,  but  it  was  after 
12  when  the  whole  party  was  gone.  He  has 
staid  at  my  house  when  he  has  come  down  to 
the  city. 

By  the  COURT. 

Sometimes  he  would  come  down  pretty 
often  in  a  week,  and  sometimes  I  would  not 
Bee  him  for  two  weeks.  On  the  Thursday 
night  he  had  dark  clothes  on ;  he  generally 
wore  dark  clothes.  I  did  not  take  particular 
notice  of  his  dress,  and  can  not  say  whether 
it  was  the  same  as  that  he  now  wears. 


JOHN  H.  FULLER. 

For  the  Defense. — May  25 

By  MR.  Cox. 

I  am  engaged  in  business  in  this  city,  I 
have  known  the  accused,  Michael  O'Laugh 
lin,  for  twelve  or  fourteen  years.  On  Friday, 
the  14th  of  April,  I  saw  him  at  Rullman's 
on  the  avenue  between  7  and  8  o'clock,  and 
again  between  10  and  11.  He  and  I  were 
both  there  when  the  news  of  the  President's 
assassination  was  brought  in,  and  we  left 
there  together  to  go  to  the  Franklin  House, 
where  I  was  stopping.  He  staid  all  night 
with  me,  and  got  up  about  8  o'clock  next 
morning,  and  went  with  me  to  New  Jersey 
Avenue,  and  then  to  the  Lichau  House,  and 
there  I  parted  with  him ;  he  joining  his  other 
friends  there.  When  he  heard  of  the  Presi 
dent's  assassination,  he  did  not  show  any 
fright,  nor  did  he  say  any  thing  about  Booth  ; 
he  said  he  was  sorry  for  it;  that  it  was  an 
awful  thing. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

O'Laughlin  was  stopping  at  another  hotel, 
but  I  invited  him  to  go  with  me  that  night; 
he  used  to  go  down  there  with  me  at  times 
to  stay.  I  do  not  know  where  he  stopped  on 
Thursday  night. 

By  MR.  Cox. 

He  used  to  reside  in  Washington;  his 
brother  was  in  business  here. 

JOHN  R.  GILES. 
For  the  Defense. — June  3. 
By  MR.  Cox. 

I  am  bar-tender  at  No.  456  Pennsylva 
nia  Avenue,  late  Rullman's  Hotel.  I  have 
known  the  accused,  Michael  O'Laughlin, 
personally,  about  four  months.  He  was  at 
our  place  on  the  evening  of  Thursday,  the 
13th  of  April,  with  Barney  Early,  Murphy, 
Lieutenant  Henderson,  Purdy,  and  several 
others.  He  was  there  early  in  the  evening, 
and  again  about  10  o'clock,  and  staid  till 
after  11.  I  joined  them  when  they  went  out, 
and  was  with  them  until  1  o'clock.  They 
were  there  again  on  Friday  evening,  nearly 
all  the  evening.  The  news  of  the  assassina 
tion  came  in,  I  think,  between  half-past  9 
and  10;  and  O'Laughlin  was  there  at  that 
time.  He  afterward  went  out  with  Mr.  Ful 
ler.  The  Lichau  House  is  on  Louisiana 
Avenue,  between  Four-and-a-half  and  Sixth 
Streets,  and  the  Canterbury  Music  Hall  is 
next  door. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

ft  might  have  been  after  10  o'clock  that 
the  news  of  the  President's  assassination 
was  brought  in — I  can  not  say  exactly. 


232 


THE    CONSPIRACY    TRIAL. 


O'Laughlin  was  at  our  house  on  Friday 
evening  from  7  or  8  o'clock  till  11.  He  was 
out  on  the  pavement,  and  in  and  out  drink 
ing,  but  was  not  away  from  the  house. 

P.  H.  MAULSBY. 

For  the  Defense. — May  26. 

By  MR.  Cox. 

I  am  a  clerk  with  Eaton  Bros.  &  Co.,  of 
Baltimore,  and  am  brother-in-law  to  the 
accused,  Michael  O'Laughlin.  O'Laughlin, 
I  believe,  came  from  the  South  to  Baltimore 
in  August,  1862.  He  came  home  somewhat 
sick.  He  then  went  with  his  brother,  who 
was  in  the  produce  and  feed  business,  and 
remained  with  him  until  the  fall  of  1863. 
His  brother  then  sold  the  business,  but 
Michael  O'Laughlin  remained  here  and  re 
ceived  orders,  which  his  brother  supplied 
from  Baltimore.  O'Laughlin  was  here  off 
and  on  from  that  period  up  to  the  14th  of 
March. 

I  knew  J.  Wilkes  Booth  intimately.  Mrs. 
Booth  owns  the  property  in  which  the 
O'Laughlin  family  resides,  and  Mrs.  Booth 
lived  opposite  for  four  years.  The  boys, 
Michael  and  William,  were  schoolmates  of 
-J.  Wilkes  Booth.  To  my  knowledge,  their 
intimacy  has  continued  for  twelve  years. 

After  leaving  Washington,  the  home  of 
Michael  O'Laughlin  was  with  me,  at  57 
North  Exeter  Street.  From  the  18th  of 
March  to  the  13th  of  April  he  was  with  me, 
and  from  the  30th  of  March  to  the  12th  of 
April,  I  can  speak  positively  as  to  his  being 
with  me  at  Baltimore.  I  know  he  was  at 
home  on  the  7th  of  March,  and  remained 
at  home  some  days.  I  know  of  his  being 
sent  to  Washington  by  his  brother  on  the 
13th  of  March,  and  on  the  14th  his  brother 
telegraphed  him  here  respecting  a  car-load 
of  hay. 

[A  telegraphic  dispatch  relating  to  the  hay  was  read  and 
put  in  evidence.] 

He  returned  to  Baltimore  on  the  following 
Saturday,  and  from  that  time  he  remained 
at  home  till  he  came  to  Washington  on  the 
13th  of  April.  In  February,  I  could  not 
state  positively  as  to  his  being  at  home.  He 
was  at  home  on  the  7th  and  on  the  14th, 
and  my  impression  is  that  he  was  then  home 
for  a  couple  of  weeks. 

Q.  At  what  time  did  he  arrive  at  home 
after  the  assassination? 

A.  He  came  up  on  Saturday  evening;  I 
saw  him  about  7  o'clock. 

Q.  Had  the  officers  been  to  the  house  then 
in  search  of  him  ? 

A.  They  had. 

Q.  Did  you  inform  him  of  that? 

A.  I  did. 

Q.  Then  what  took  place? 

A.  He  told  me  that—  . 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  accused  giving  his  own  declara 
tions  in  evidence,  for  the  reason  that  he  had 


I  stated  yesterday,  in  regard  to  a  similar  ques- 
jtion,  in  which  he  had  been  sustained  by  the 
Court,  that  if  such  a  rule  as  that  were 
adopted  and  acted  upon  by  courts,  all  that 
a  guilty  man  would  have  to  do,  after  he  had 
committed  a  great  crime,  would  be  to  pour 
his  statements  into  the  ears  of  all  honest 
people  that  he  met  up  to  the  time  of  his  ar 
rest,  and  then  prove  those  statements  on  his 
trial.  *  The  law  says  that  he  shall  not  do  any 
such  thing,  and  I  object  to  it  on  that  ac 
count. 

Mr.  Cox  stated  that  he  desired  to  prove 
by  this  witness,  that  the  prisoner,  Michael 
O'Laughlin,  was  informed  that  the  officers 
had  been  in  pursuit  of  him ;  that  he  in 
formed  the  witness  that  he  had  an  engage 
ment  on  Saturday  night,  but  would  commu 
nicate  with  him  the  next  day  ;  that  on  Mon 
day  he  did  send  for  him  to  come  to  him,  and 
authorized  him  to  procure  an  officer,  and 
put  himself  in  his  custody,  declaring  all  the 
time  his  entire  innocence  of  any  complicity 
with  this  affair. 

The  JUDGE  ADVOCATE  said  the  witness 
should  be  instructed  that  he  is  not  to  give 
the  declarations  of  the  prisoner,  but  simply 
his  acts,  in  evidence. 

Q.  You  say  you  informed  him  on  Satur 
day  afternoon  that  the  officers  had  been  in 
search  of  him  ? 

A.   I  did. 

Q.  Did  he  protest  his  innocence? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question.  There  was  no  au 
thority  in  the  world  for  such  a  question  as 
that;  it  was  a  burlesque  upon  judicial  pro 
ceedings. 

Mr.  Cox  insisted  on  the  question.  If  a 
party  flees  and  avoids  arrest,  it  would  cer 
tainly  be  receivable  for  the  prosecution;  but 
if  he  candidly  comes  forward  and  says,  "  I 
am  not  guilty,  and  I  offer  myself  for  investi 
gation  and  trial,"  it  should  equally  be  re 
ceivable  for  the  defense. 

The  JUDGE  ADVOCATE  stated  that  that  was 
not  the  rule  of  law.  The  Government  could 
give  the  declarations  of  the  accused  in  evi 
dence,  but  it  did  not  follow  from  that  that 
the  prisoner  could. 

Mr.  Cox  replied  that  where  it  was  a  part 
of  his  conduct,  he  could.  He  could  not 
prove  his  innocence  by  declaring  himself  so, 
but  where  it  was  a  part  of  his  conduct  it 
was  receivable  upon  the  question  of  how  far 
he  was  conscious  of  guilt. 

The  Commission  sustained  the  objection. 

WITNESS.  On  Monday  morning  Michael 
O'Laughlin  authorized  me  to  procure  an 
officer,  and  voluntarily  surrendered  himself. 

I  have  known  O'Laughlin  for  about  twelve 
years. 

Q.  State  his  disposition  and  character; 
whether  he  is  violent  and  bad-hearted,  or, 
on  the  contrary,  amiable,  mild-tempered,  etc. 

A.  As  a  boy,  he  was  always  a  very  timid 
boy.  From  my  observation  of  twelve  years, 


DEFENSE    OF    MICHAEL    o'LAUGHLIN. 


233 


I  believe  him  to  be  the  last  one  who  would 
have  any  thing — 

Assistant  Judge  Advocate  BURNETT.  What 
yon  believe  is  not  evidence. 

Mr.  Cox.  I  meant  to  ask  the  witness 
whether,  from  his  knowledge  of  the  accused, 
he  believes  him  capable  of  being  engaged  in 
any  thing  of  this  sort. 

Assistant  Judge  Advocate  BINGHAM.  I  ob 
ject  to  his  swearing  to  conclusions.  He 
can  state  the  general  character  of  the  ac 
cused,  but  he  can  not  swear  to  conclusions. 
This  is  a  matter  exclusively  for  the  Court. 

WITNESS.  I  was  merely  about  to  speak  of 
his  capability,  judging  from  my  observation 
of  his  disposition. 

Assistant  Judge  Advocate  BINGHAM.  You 
can  state  his  disposition. 

Q.  State  what  his  disposition  is  as  to  amia 
bility,  peaceful  ness,  etc. 

A.  I  have  always  regarded  him  as  an 
amiable  boy. 

Q.  Was  he  violent  on  political  questions? 

A.  I  never  recollect  having  seen  him  in  a 
passion  in  my  life.  On  political  questions 
he  has  never  been  violent.  I  have  never 
heard  him  express  any  opinion,  except  in  a 
very  moderate  way,  on  the  issues  of  the 
times. 

Q.  There  has  been  some  testimony  by  Mr. 
Wallace  about  his  arrest  of  the  accused.  I 
would  like  you  to  state,  the  facts  in  regard 
to  that  alleged  arrest,  and  what  Mr.  Wallace 
had  to  do  with  it.  In  the  first  place,  I  will 
inquire  whether  Michael  had  authorized  you 
to  go  for  an  officer  ? 

Assistant  Judge  Advocate  BINGHAM.     That 


I  object  to. 
Mr.  Cox. 


Then    I  will    ask    the    witness 


whether  he  went  for  an  officer,  and  whom 
he  procured. 

A.  The  facts  in  the  case  are  simply  these: 
When  I  met  Michael  I  suggested  to  him — 

Assistant  Judge  Advocate  BINGHAM.  You 
need  not  state  any  thing  that  you  said  to 
Michael. 

Q.  State  what  you  did  after  leaving  him 
on  Monday  morning. 

A.  On  Monday  morning  he  sent  for  me 
and  said — 

Assistant  Judge  Advocate  BINGHAM. 
need  not  state  what  he  said. 

Q.  What  did  you  do  in  consequence  of 
what  he  said  to  you  ? 

Assistant  Judge  Advocate  BINGHAM  ob 
jected.  The  question  assumes  that  the  ac 
cused  told^the  witness  something,  and  the 
witness  was  asked  to  swear  that,  in  conse 
quence  of  what  the  accused  told  him,  he  did 
something  else.  The  counsel  had  no  right, 
to  assume  any  thing  here  as  proof  that  was 
not  proof;  and  more  especially  had  he  no 
right  to  assume  as  proved  what  was  incapa 
ble  of  being  proved — the  declarations  of  his 
client. 

Mr.  Cox  replied  that  the  whole  object  of 
the  inquiry  was  to  ascertain,  for  the  satisfac 


tion  of  the  Court,  whether  the  accused,  with 
that  consciousness  of  innocence  which  would 
govern  a  man  who  was  innocent,  did  really 
act  in  accordance  with  that  consciousness, 
by  voluntarily  submitting  himself  to  the 
officers  of  justice,  professing  his  willingness 
to  submit  to  an  investigation.  If  the  flight, 
which  the  prosecution  have  attempted  to 
prove,  was  evidence  of  guilt,  certainly  it  was 
competent  for  the  defendant  to  meet  that 
evidence  by  proof,  on  the  contrary,  that 
there  was  no  flight,  no  evasion,  but  a  volun 
tary  submission  to  the  officers  of  the,  law, 
with  a  view  of  having  the  merits  of  the  case 
fairly  tried. 

The  JUDGE  ADVOCATE  said  that  the  witness 
might  be  asked  if  he  did  it  himself,  or  if  he 
did  it  by  the  prisoner's  authority. 

Q.  State  whether  you  surrendered  the  ac 
cused  into  the  custody  of  an  officer  by  the 
authority  of  the  accused  himself. 

A.  1  did,  sir,  most  certainly. 

On  Saturday  evening,  at  7  o'clock,  I  met 
Mr.  O'Laughlin  and  Mr.  Early  together,  just 
as  they  returned  from  Washington.  On 
Sunday  morning  Mr  Wallace  and  other 
officers  came  to  our  house  in  search  of 
O'Laughlin.  I  believe  officers  had  been  there 
on  Saturday,  though  I  had  not  seen  them. 
On  Monday  I  was  sent  for  by  Michael.  I 
went  for  a  hack,  and  called  for  Mr.  Wallace, 
who  was  not  then  aware  of  O'Laughlin's 
whereabouts.  I  went  into  the  house,  Mr. 
Wallace  remaining  in  the  hack,  and  Michael 
came  out,  and  I  introduced  him  to  Mr.  Wal 
lace  and  Mr.  James  S.  Allison.  There  was 
nothing,  I  believe,  said  from  that  time  till 
we  reached  the  Marshal's  office. 

Q.  I  ask  you  to  state,  further,  whether  he 
offered  to  inform  you  where  he  could  be 
found  that  night,  if  wanted. 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  question,  and  the  Commission 
sustained  the  objection. 

Q.  Did  you  know  Booth  intimately? 

A.  Yes,  sir. 

Q.  State  whether  he  was  a  man  of  pleas 
ing  address. 

Assistant  Judge  Advocate  BINGHAM.  T 
object  to  all  that. 

Mr.  Cox,  What  I  desire  to  show  to  the 
•Court,  and  what  all  the  counsel  desire,  is  to 
have  some  evidence  as  to  the  character  of 
this  man,  John  Wilkes  Booth.  There  is 
nothing  in  the  case  yet  to  reflect  any  light 
at  all  on  that  question.  If  any  of  these  ac 
cused  should  be  found  guilty  of  association 
with  him  in  this  serious  crime,  Booth's  in 
fluence  upon  them,  whatever  it  may  have 
been,  would  not  affect  the  question  of  their 
innocence,  but  it  is  a  consideration,  which 
goes  in  mitigation  of  their  guilt,  that  Booth 
was  a  man  who  naturally  acquired  a  great 
ascendency  over  young  men  with  whom  he 
associated,  and  could  warp  them  from  the 
right  by  means  of  his  control  over  them. 
My  desire  is  to  introduce  some  evidence  on 


234 


THE   CONSPIRACY   TRIAL. 


that  subject,  and  it  is  the  desire  of  all  the 
counsel  for  the  defense.  The  question  which 
I  propound  to  the  witness  is  a  preliminary 
question,  designed  to  introduce  that  sub 
ject. 

The  JUDGE   ADVOCATE:.     It  does  not  miti 
gate  the  assassination  at  all,  that  it  was  per 


formed  by  a  man  of  fascinating  address  and 
pleasing  manners. 

Mr.  Cox.  No,  but  it  mitigates  the  act  of 
the  other  parties  that  they  were  acting  under 
his  influence. 

The  JUDGE  ADVOCATE.     Not  at  all. 

The  Commission  sustained  the  objection. 


TESTIMONY  CONCERNING  SAMUEL  ARNOLD. 


EATON  G.  HORNER. 
For  the  Prosecution. — May  18. 

On  the  morning  of  the  17th  of  April,  Mr. 
Voltaire  Randall  and  myself  arrested  the 
prisoner,  Samuel  Arnold,  at  Fortress  Monroe. 
We  took  him  in  the  back  room  of  the  store, 
where  he  slept.  We  there  searched  his  per 
son  and  his  carpet-bag,  in  which  we  found  a 
pistol,  something  like  a  Colt's.  He  said  he 
liad  left  another  pistol  and  a  knife  at  his 
father's,  at  Hookstown. 

Cross-examined  by  MR.  EWING. 

Arnold  made  a  statement  verbally  to  us  at 
Fortress  Monroe.  Before  we  left  Baltimore, 
a  letter  was  given  to  us  by  his  father  to  give 
him  when  we  should  arrest  him.  We  handed 
him  the  letter,  and  he  read  it.  I  inquired  of 
him  if  he  was  going  to  do  as  they  asked  him 
to  do,  and  he  said  that  he  was.  He  then  gave 
us  a  statement  and  the  names  of  certain  men 
connected  with  a  plan  for  the  abduction  of 
Abraham  Lincoln. 

Mr.  STONE.  I  object  to  the  declarations  of 
one  of  the  accused  against  others  of  the  ac 
cused,  made  perhaps  to  throw  the  responsi 
bility  off  his  own  shoulders  on  that  of  the 
others. 

Mr.  EWING.  The  confession  of  one  of  the 
accused  in  a  conspiracy  or  alleged  conspiracy, 
after  the  conspiracy  has  been  either  executed 
or  abandoned,  is  not  admissible — that  is,  will 
not  be  considered  by  the  Court  in  weighing 
the  question  of  the  guilt  or  innocence  of 
those  who  are  associated  with  him  in  the 
charge;  but  that  is  a  rule  of  law  which 
should  not  be  so  applied  as  to  cut  off  one  of 
the  accused  from  giving  in  evidence  any  state 
ment  which  he  made,  accompanying  such  an 
incident  as  his  confession  of  the  possession  of 
arms. 

MR.  STONE.  I  take  it,  that  is  not  the  rule 
which  governs  courts-martial,  as  it  certainly 
does  not  govern  any  other  courts  in  the  con 
sideration  of  evidence.  Whatever  is  not  com 
petent  evidence  is  not  allowed  to  go  to  a  jury 
at  all ;  it  is  excluded  from  their  consideration 
entirely;  and  I  take  it  for  granted  that  this 
Court,  having  to  determine  both  the  law 


(under  the  guidance  and  advice  of  the  learned 
Judge  Advocate)  and  the  facts  of  the  case, 
will  discard  entirely  from  the  record  all  evi 
dence  which  is  clearly  inadmissible,  and 
which  ought  not  to  be  weighed  adversely  to 
a  prisoner,  because  it  is  impossible  for  any 
man,  in  the  nature  of  things,  to  discard  from 
his  consideration  and  prevent  his  judgment 
from  being  biased  by  evidence  which  is  once 
submitted  to  him,  and  which  may  be  in  its 
nature  adverse  to  the  prisoner,  although  it 
may  be  incompetent  and  illegal  evidence. 

Mr.  EWIXG.  The  Judge  Advocate,  in  the 
charges  and  by  the  evidence,  has  sought  to 
associate  him  with  the  conspiracy,  and  one  of 
the  links  of  the  association  is  the  arms  there. 
Therefore  it  seemed  to  me  that  any  statement 
he  made  at  that  time  and  place,  with  refer 
ence  to  his  connection  with  the  conspiracy, 
i  is  legitimate.  If  the  Court  will  allow  me,  I 
will  read  a  short  paragraph  from  Roscoe'a 
Criminal  Evidence,  page  53: 

"  Where  a  confession  by  one  prisoner  is 
given  in  evidence  which  implicates  the  other 
prisoners  by  name,  a  doubt  arises  as  to  the 
propriety  of  suffering  those  names  to  be  men 
tioned  to  the  jury.  On  one  circuit  the  prac 
tice  has  been  to  omit  their  names,  (Fletcher  s 
Case,  4  C.  &  P.  250,)  but  it  has  been  ruled 
by  Littledale,  JM  in  several  cases,  that  the 
names  must  be  given.  Where  it  was  objected, 
on  behalf  of  a  prisoner  whose  name  was  thus 
introduced,  that  the  witness  ought  to  be  di 
rected  to  omit  his  name,  and  merely  say 
another  person,  Littledale,  J.,  said,  'The 
witness  must  mention  the  name.  He  is  to 
tell  us  what  the  prisoner  said,  and  if  he  left 
out  the  name  he  would  not  do  so.  He  did 
not  say  another  person,  and  the  witness  must 
give  us  the  conversation  just  as  it  occurred; 
but  I  shall  tell  the  jury  that  it  is  not  evidence 
against  the  other  prisoner.'  (Hearne's  Case, 
4  C  &  P.  215;  Clew e.x  Case,  Id.  255)." 

That  paragraph  evidently  contemplates 
only  confessions  introduced  by  the  prosecu 
tion;  but  if  the  course  of  the  examination  has 
been  sucli  as  to  make  it  the  right  of  a  prisoner 
to  introduce  a  confession  or  statement,  made  at 
a  particular  moment,  on  his  own  behalf,  he 
has  just  as  much  right  to  introduce  the  con- 


TESTIMONY    CONCERNING   SAMUEL   ARNOLD. 


235 


fession,  even  though  there  be  others  associated 
with  him  in  the  charge,  as  the  prosecution 
would  have,  if  it  saw  fit  to  do  so. 

The  President,  after  consultation  with  the 
members  of  the  Commission,  announced  that 
the  objection  was  overruled. 

The  question  was  repeated  to  the  witness. 

WITNESS.  About  three  weeks  previous  to 
Arnold's  going1  to  Fortress  Monroe,  lie  said  he 
was  at  a  meeting  held  at  the  Lichau  House, 
on  Pennsylvania  Avenue,  between  Sixth  and 
Four-and-a-half  Streets.  J.  Wilkes  Booth, 
Michael  O'Laughlin,  George  A.  Atzerodt, 
John  H.  Surratt,  and  a  man  with  the  alias 
of  Moseby,  and  another,  a  small  man,  whose 
name  I  could  not  recollect,  were  there.  I 
asked  him  if  he  ever  corresponded  with  Booth. 
At  first  he  denied,  but  on  my  mentioning  the 
letter  that  had  been  found  in  Booth's  trunk, 
mailed  at  Huntstown,  he  admitted  that  he 
wrote  that  letter.  In  the  same  conversation 
he  told  me  about  the  pistol  and  knife  at  his 
father's  farm.  We  imprisoned  him  till  even 
ing,  when  we  brought  him  to  Baltimore. 

Cross-examined  by  MR.  EWING. 

In  that  conversation,  Arnold  said  that 
Booth  had  letters  of  introduction  to  Dr. 
Mudd  and  Dr.  Queen,  but  he  said  he  did  not 
know  from  whom  Booth  got  the  letters.  On 
arriving  in  Baltimore,  we  took  Arnold  to 
Marshal  McPhail's  office.  At  the  meeting 
at  which  Arnold  and  others  were  present  an 
angry  discussion  took  place.  Booth,  he  said, 
got  angry  at  something  he  said.  Arnold  said 
that  if  the  thing  was  not  done  that  week  that 
he  was  there,  he  would  withdraw.  Booth 
got  angry  at  this,  and  said  that  he  ought  to 
be  shot  for  expressing  himself  in  that  way, 
or  he  had  said  enough  for  Booth  to  shoot 
him,  or  words  to  that  effect,  when  Arnold 
said  that  two  could  play  at  that  game. 
Arnold  said  that  he  withdrew  at  that  time, 
and  on  the  1st  of  April  occupied  a  position 
at  Fortress  Monroe  with  Mr.  W.  Wharton. 

He  did  not  state,  or  I  do  not  remember, 
the  precise  date  of  the  meeting,  and  I  do  not 
know  whether  he  said  he  had  seen  Booth 
since  or  not. 

Q.  But  he  stated  that  he  had  nothing  more 
to  do  with  the  conspiracy? 

Assistant  Judge  Advocate  BINGHAM  objected 
to  the  question. 

WITNESS.  Arnold  said  that  he  would  with 
draw,  or  would  have  no  connection  with  the 
business,  if  it  was  not  done  that  week,  on 
which  Booth  said  something  to  the  effect 
that  he  would  be  justified  in  shooting  him 
for  expressing  himself  in  that  way.  I  do  not 
remember  that  he  said  after  that  that  he  would 
withdraw.  He  said  that  after  that  he  did  have 
nothing  more  to  do  with  the  conspiracy,  but  ac 
cepted  a  position  under  Mr.  Wharton.  He  said 
the  purpose  of  the  parlies  in  this  conspiracy, 
up  to  the  time  he  withdrew,  was  to  abduct  or 
kidnap  the  President,  and  take  him  South,  for 
the  purpose  of  making  this  Government  have 


an  exchange  of  prisoners,  or  something  like 
that.  I  asked  him  what  he  was  to  do  in  it, 
what  his  part  was;  I  think  he  said  he  was 
to  catch  the  President  when  he  was  thrown 
out  of  the  box  at  the  theater. 

On  my  asking  Arnold  where  he  got  the 
arms,  he  said  that  Booth  furnished  the  arms 
for  all  the  men.  Arnold  said  he  asked  Booth 
what  he  should  do  with  the  arms;  Booth 
told  him  to  take  them  and  do  any  thing  with 
them ;  sell  them  if  he  chose.  There  was  a 
knife  and  a  pistol  at  his  father's,  and  a  pistol 
he  brought  with  him  to  Fortress  Monroe  to 
sell;  that  is  the  one  we  got  in  his  carpet-bag. 

By  MR.  Cox. 

From  what  Arnold  said,  I  do  not  think 
that  the  meeting  to  which  he  referred  was 
the  first  meeting.  He  said  that  at  that 
meeting  there  were  some  new  men  that  he 
had  not  seen  before.  He  said  that  after  dis 
cussing  the  scheme,  he  came  to  the  con 
clusion  that  it  was  impracticable;  that  was 
the  word  he  used.  I  understood  him  that 
he  individually  abandoned  the  scheme  at  that 
time,  but  I  did  not  understand  that  the 
scheme  was  abandoned  by  the  party,  but  that 
he  considered  that  plan  or  mode  of  kidnap 
ping  the  President  as  impracticable,  and 
wished  to  withdraw  from  having  any  thing 
further  to  do  with  it.  This  meeting,  I  under 
stood  Arnold  to  say,  was  a  week  or  two,  it 
might  have  been  two  or  three  weeks,  before 
he  went  to  Fortress  Monroe.  There  was  no 
rope  found  in  Arnold's  sack. 

VOLTAIRE  RANDALL. 
For  the  Prosecution. — May  25. 

I  know  the  prisoner,  Samuel  Arnold. 
When  we  arrested  him,  I  examined  his 
carpet-sack,  and  found  in  it  some  letters, 
papers,  clothing,  a  revolver,  and  some  car 
tridges. 
[Submitting  to  the  witness  a  revolver.] 

This  is  the  same  revolver;  the  number  is 
164,557.  I  made  a  memorandum  of  it  at 
the  time,  and  this  is  the  same.  It  was  loaded 
then  arid  is  now.  It  is  a  Colt's  navy  pistol. 

[The  pistol  was  offered  in  evidence.] 

Cross-examined  by  MR.  EWING. 

I  arrested  Arnold  at  the  storehouse  of  John 
W.  Wharton,  near  Fortress  Monroe.  I  be 
lieve  the  place  is  called  Old  Point;  it  was 
not  in  the  fort. 

LIEUTENANT  WILLIAM  H.  TERRY 
For  the  Prosecution. — May  18. 

lam  attached  to  Colonel  Ingraham's  office 
in  this  city.  On  the  night  after  the  assassin 
ation,  Mr.  William  Eaton,  who  has  testified 
in  this  case,  and  who  took  charge  of  the 
trunk  of  J.  Wilkes  Booth,  placed  in  rny 
hands  the  papers  found  among  Booth's 
effects. 


236 


THE    CONSPIRACY   TKIAL. 


[A  letter  was  handed  the  witness.] 

That  is  one  of  the  papers,  and  it  was  in 
that  envelope.  Colonel  Taylor  marked  the 
envelope  "Important,"  and  signed  his  initials 
to  it. 

[The  letter  was  read  as  follows :  ] 

HOOKSTOWN,  BALTO.  Co.,  \ 
March  27,  18G5.     j" 

DEAR  JOHN:  Was  business  so  important 
that  you  could  not  remain  in  Balto.  till  I 
saw  you  ?  I  came  in  as  soon  as  I  could, 
but  found  you  had  gone  to  W — n.  I  called 
also  to  see  Mike,  but  learned  from  his  mother 
he  had  gone  out  with  you,  and  had  not  re 
turned.  I  concluded,  therefore,  he  had  gone 
with  you.  How  inconsiderate  you  have  been  ! 
When  I  left  you,  you  stated  we  would  not 
meet  in  a  month  or  so.  Therefore,  I  made 
application  for  employment,  an  answer  to 
which  I  shall  receive  during  the  weelt.  I 
told  my  parents  I  had  ceased  with  you.  Can 
I,  then,  under  existing  circumstances,  come 
as  you  request?  You  know  full  well  that 
the'G — t  suspicions  something  is  going  on 
there;  therefore,  the  undertaking  is  becom 
ing  more  complicated.  Why  not,  for  the 
present,  desist,  for  various  reasons,  which,  if 
you  look  into,  you  can  readily  see,  without 
my  making  any  mention  thereof.  You,  nor 
any  one,  can  censure  me  for  my  present 
course.  You  have  been  its  cause,  for  how 
can  I  now  come  after  telling  them  I  had  left 
you  ?  Suspicion  rests  upon  me  now  from  my 
whole  family,  and  even  parties  in  the  county. 
I  will  be  compelled  to  leave  home  any  how, 
and  how  soon  I  care  not.  None,  no  not  one, 
were  more  in  favor  of  the  enterprise  than 
myself,  and  to-day  would  be  there,  had  you 
not  done  as  you  have — by  this  I  mean,  man 
ner  of  proceeding.  I  am,  as  you  well  know, 
in  need.  I  am,  you  may  say,  in  rags, 
whereas  to-day  I  ought  to  be  well  clothed. 
I  do  not  feel  right  stalking  about  with  means, 
and  more  from  appearances  a  beggar.  I  feel 
my  dependence;  but  even  all  this  would  and 
was  forgotten,  for  I  was  one  with  you.  Time 
more  propitious  will  arrive  yet.  Do  not  act 
rashly  or  in  haste.  I  would  prefer  your  first 
query,  "go  and  see  how  it  will  be  taken 

at  II d,  and   ere  long   I  shall   be   better 

prepared  to  again  be  with  you.  I  dislike 
writing;  would  sooner  vei bally  make  known 
my  views ;  yet  your  non-writing  causes  me 
thus  to  proceed. 

Do  not  in  anger  peruse  this.  Weigh  all  I 
have  said,  and,  as  a  rational  man  and  a,  friend, 
you  can  not  censure  or  upbraid  my  con 
duct.  I  sincerely  trust  this,  nor  aught  else 
that  shall  or  may  occur,  will  ever  be  an 
obstacle  to  obliterate  our  former  friendship 
and  attachment.  Write  me  to  Balto.,  as  1 
expect  to  be  in  about  Wednesday  or  Thurs 
day,  or,  if  you  can  possibly  come  on,  I  will 

Tuesday  meet  you  in  Balto.,  at  B .     Ever 

I  subscribe  myself, 

Your  friend,  SAM. 

[The  letter  was  put  in  evidence.] 


WILLIAM  McPnAiL. 
For  the  Prosecution. — May  18. 

I  am  acquainted  with  the  handwriting  of 
Samuel  Arnold. 

[Exhibiting  to  the  witness  the  letter  signed  "  Sam."] 

That  has  somewhat  the  appearance  of  his 
handwriting,  though  I  think  it  is  rather 
heavier  in  some  parts  of  it.  I  should  say  it 
was  his  handwriting. 

Cross-examined  by  MR.  EWING. 

I  became  acquainted  with  his  handwriting 
from  having  a  confession  of  his  placed  in 
my  hands.  It  was  a  paper  purporting  to 
state  all  he  knew  in  regard  to  this  affair.  It 
was  written  in  the  back  room  of  Marshal 
James  McPhail's  office,  No.  4  Fayette  Street, 
Baltimore.  The  paper  was  handed  by  me  to 
the  Marshal,  and  I  was  informed  that  the 
officers  delivered  it  to  the  Secretary  of  War 

GEORGE  R  MAGEE. 

For  the  Prosecution. — May  25. 

By  the  JUDGE  ADVOCATE. 

Q.  State  to  the  Court  whether  you  know 
the  prisoner  at  the  bar,  Samuel  Arnold. 

A.   I  do. 

Q.  State  to  the  Court  whether  or  not  he 
has  been  in  the  military  service  of  the  rebels, 

Mr.  EWING.  I  object  to  that  question. 
Arnold  is  here  on  trial  for  having  been  en 
gaged  in  a  conspiracy  to  do  certain  things, 
and  it  is  not  competent  for  the  Government 
to  show  (if  such  be  the  fact)  that  before  he 
entered  into  the  conspiracy  he  was  in  the 
military  service  of  the  Confederate  States. 
He  is  not  on  trial  for  that.  He  is  on  trial 
for  offenses  denned  clearly  in  the  charge  and 
specification,  and  it  seems  to  me  it  is  not 
competent  to  aggravate  the  offense  of  which 
he  is  charged,  and  of  which  they  seek  to 
prove  him  guilty,  by  proving  that  he  has 
been  unfaithful  to  the  Government  in  other 
respects  and  at  other  times,  and  it  can  be 
introduced  for  no  other  purpose  than  that 
of  aggravating  his  alleged  offenses  in  connec 
tion  with  this  conspiracy.  That  course  of 
testimony  would  be,  in  effect,  to  allow  the 
prosecution  to  initiate  testimony  as  to  the 
previous  character  of  the  accused  ;  and  that  is 
a  right  that  is  reserved  to  the  accused,  and  is 
never  allowed  to  the  prosecution.  It  would 
do  more  than  that:  it  would  allow  them  to 
do  what  the  accused  is  not  allowed  on  his 
own  behalf  on  the  point  of  character — that 
is,  to  show  acts  wholly  unconnected  with  the 
crimes  with  which  he  is  charged,  from  which 
his  previous  character  may  be  inferred. 

The  JUDGE  ADVOCATE.  I  think  the  testi 
mony  in  this  case  has  proved,  what  I  believe 
history  sufficiently  attests,  how  kindred  to 
each  other  are  the  crimes  of  treason  against 
a  nation  and  the  assassination  of  its  chief 
magistrate.  I  think  of  those  crimes  the 


TESTIMONY    CONCERNING   SAMUEL  ARNOLD. 


237 


one  seems  to  be,  if  not  the  necessary  conse 
quence,  certainly  a  logical  sequence  from 
the  other.  The  murder  of  the  President  of 
the  United  States,  as  alleged  and  shown,  was 
pre-eminently  a  political  assassination.  Dis 
loyalty  to  the  Government  was  its  sole  in 
spiration.  When,  therefore,  we  shall  show, 
on  the  part  of  the  accused,  acts  of  intense 
disloyalty,  bearing  arms  in  the  field  against 
that  Government,  we  show  with  him  the 
presence  of  an  animus  toward  the  Govern 
ment  which  relieves  this  accusation  of  much, 
if  not  all,  of  its  improbability.  And  this 
course  of  proof  is  constantly  resorted  to  in 
criminal  courts.  I  do  not  regard  it  as  in  the 
slightest  degree  a  departure  from  the  usages 
of  the  profession  in  the  administration  of 
public  justice.  The  purpose  is  to  show  that 
the  prisoner,  in  his  mind  and  course  of  life, 
was  prepared  for  the  commission  of  this 
crime;  that  the  tendencies  of  his  life,  as 
evidenced  by  open  and  overt  acts,  lead  and 
point  to  this  crime,  if  not  as  a  necessary, 
certainly  as  a  most  probable  result,  and  it  is 
with  that  view,  and  that  only,  that  the  testi 
mony  is  offered. 

Mr.  EWING.  Can  the  learned  Judge  Ad 
vocate  produce  authority  to  sustain  his  posi 
tion  ? 

Assistant  Judge  Advocate  BINGHAM.  There 
is  abundance  of  authority  to  sustain  the 
position.  In  Roscoe  there  is  express  au 
thority.  The  book  is  not  here  now,  but  as 
the  gentleman  calls  for  authority,  I  will  state 
now,  and  pledge  myself  to  bring  the  book 
into  the  court-room,  that  Roscoe's  Criminal 
Evidence,  about  page  85  or  89,  contains  the 
express  text  in  the  body  of  it,  that  when  the 
intent  with  which  a  thing  is  done  is  in  issue, 
other  acts  of  the  prisoner  not  in  issue,  to 
prove  that  intent,  may  be  given  in  evidence, 
and  that  is  exactly  the  point  that  is  made 
here  by  the  Judge  Advocate  General.  It  is 
not  the  point  contemplated  by  the  counsel, 
and,  putting  it  on  the  ground  on  which  he 
puts  it,  nobody  contends  for  it.  It  is  alleged 
in  this  charge  and  specification  that  this 
party  engaged  in  this  conspiracy  to  murder 
the  President  of  the  United  States,  to  mur 
der  the  Secretary  of  State,  to  murder  the 
Vice-President,  and  to  murder  Lieutenant- 
General  Grant,  the  commander  of  the  armies 
in  the  field  under  the  direction  of  the  Presi 
dent,  with  intent  to  aid  the  rebellion  against 
the  United  States.  The  intent  is  put  in  issue 
here  by  the  charge  and  specification  against 
all  these  prisoners,  and  the  attempt  now 
made  is  to  establish  that  intent  by  proving 
what?  By  proving  that  this  man  himself 
was  part  of  the  rebellion;  that  he  was  in  it. 
I  undertake  to  say  that  there  is  no  authority 
which  is  fit  to  be  read  in  a  court  of  justice 
any  where  that  can  be  brought  against  it. 

I  may  remark,  in  this  connection,  that  the 
general  rules  of  evidence  which  obtain  in 
the  courts  of  the  common  law,  are  always 
recognized  by  the  military  courts.  The 


I  ground  on  which  it  is  put — I  state  the  au 
thority  in  words — is  that  on  a  criminal  trial, 
where  the  intent  is  in  issue,  other  acts  of  the 
prisoner  not  in  issue  may  be  proved  against 
him  by  the  prosecution,  in  order  to  show 
that  intent.  The  cases  are  very  numerous. 

Mr.  EWING.     Just  refer  to  the  allegation. 

Assistant  Judge  Advocate  BTNGHAM.  The 
gentleman  asks  me  to  refer  to  the  allegation. 
I  will.  The  charge  is,  "  Maliciously,  unlaw 
fully,  and  traitorously,  and  in  aid  of  the  ex 
isting  armed  rebellion  against  the  United 
States  of  America,  on  or  before  the  6th  day 
of  March,  A.  D.  1865,  combining,  confed 
erating,  and  conspiring  together,"  with  the 
persons  named  in  the  charge,  "  and  others 
unknown,  to  kill  and  murder,  within  the 
Military  Department  of  Washington,  and 
within  the  fortified  and  intrenched  lines 
thereof,  Abraham  Lincoln,"  etc.  Combining, 
confederating,  and  conferring  together  "in 
aid  of  the  existing  armed  rebellion  against 
the  United  States  of  America,"  is  the  allega 
tion  ;  that  is  the  intent. 

Mr.  EWING.  It  is  an  allegation  of  fact,  and 
not  of  intent. 

Assistant  Judge  Advocate  BINGHAM.  I  un 
derstand  the  gentleman,  but  I.  assert  that  the 
words  there  used,  "in  aid  of  the  existing  armed 
rebellion  against  the  United  States  of  Amer 
ica,"  are  words  of  intent ;  the  formality  of  an 
indictment  is  simply  departed  from.  If  the 
charge  had  followed  the  common-law  form,  it 
would  have  read,  "  With  intent  to  aid  the 
existing  armed  rebellion  against  the  United 
States,  the  parties  did  then  and  there  agree, 
combine,  and  confederate  together,  to  kill  and 
murder  the  President  of  the  United  States." 
These  words  are  not  the  express  terms  used, 
but  they  are  by  necessary  implication  im 
plied;  it  is  nothing  but  an  allegation  of  in 
tent,  and  never  was  any  thing  else.  It  is  no 
part  of  the  body  of  the  charge  beyond  the 
allegation  of  intent. 

Then  comes  the  specification  in  regard  to 
the  prisoner,  Arnold.  The  first  clause  of  the 
specification  is  that  the  various  persons  here 
on  trial,  "and  others  unknown,  citizens  of 
the  United  States  aforesaid,  ana1  who  were 
:hen  engaged  in  armed  rebellion  against  the 
United  States  of  America,  within  the  limits 
thereof,  did,  in  aid  of  said  armed  rebellion, 
on  or  before  the  6th  day  of  March,  A.  D. 
1865,  and  on  divers  other  days  and  times 
between  that  day  and  the  15th  day  of  April, 
A.  D.  1865,  combine,  confederate,  and  con 
spire  together,  at  Washington  City,  within 
the  Military  Department  of  Washington,  and 
within  the  intrenched  fortifications  and  mili- 
;ary  lines  of  the  said  United  States,  there 
aeing,  unlawfully,  maliciously,  and  traitor 
ously  to  kill  and  murder  Abraham  Lincoln," 
etc.,  .  .  .  "and,  by  the  means  aforesaid, 
to  aid  and  comfort  the  insurgents  engaged 
n  armed  rebellion  against  the  said  United 
States  as  aforesaid."  Is  not  that  the  same 
as  saying,  "  designing  and  intending  thereby 


238 


THE    CONSPIRACY   TRIAL. 


to  aid  and  comfort  the  insurgents  engaged  in  j  mitted   some   other    crime,  would    prejudi 


armed  rebellion  against  the  United  States?" 
There  is  the  specification,  and  I  should  like 
to  know  how  an  intent  could  be  laid  any 
more  strongly  than  that,  or  more  formally 
than  that.  It  is  an  allegation  of  intent,  and 
I  say  the  question  stands  on  authority. 

Mr.  EWING.  If  the  Court  will  allow  me, 
I  will  refer  to  an  authority  enunciating  the 
great  principle  which  I  claim  : 

"  Evidence  will  not  be  admitted  on  the 
part  of  the  prosecution  to  show  the  bad  char 
acter  of  the  accused,  unless  he  has  called 
witnesses  in  support  of  his  character,  and 
even  then  the  prosecution  can  not  examine 
as  to  particular  act."  (Benet  on  Military 
Law  and  Courts-martial,  p.  287.) 

That  is  the  general  principle  of  law,  which 
is,  doubtless,  familiar  to  the  Court;  but  the 
learned  gentleman  seeks  to  take  this  case 
out  of  the  general  principle,  upon  the  argu 
ment  that  it  is  alleged  in  the  charge  that 
the  crimes  for  which  the  accused  is  being 
tried,  were  done  with  the  intent  of  aiding 
the  rebellion.  Now,  if,  by  the  practice  of 
military  courts,  the  allegation  that  these 
crimes  were  committed  with  intent  to  aid 
the  rebellion,  were  a  necessary  allegation, 
the  Court  should  reject  the  testimony  now 
offered  on  the  ground  of  irrelevancy.  The 
acts  charged  are  acts  of  conspiracy  to  mur 
der  the  President,  the  heads  of  Government, 
and  the  leader  of  the  armies  of  the  United 
States  during  the  existence  of  the  rebellion; 
and  proof  of  these  acts  would  be  conclusive 
as  to  the  intent  to  aid  the  rebellion  ;  and 
that  evidence  of  intent  would  not  be  in  the 
least  aided  by  proof  of  service  in  the  Con 
federate  army  prior  to  and  unconnected  with 
the  acts  of  conspiracy. 

But  the  allegation  of  intent  here  is  an 
unnecessary  allegation.  The  crimes  charged 
are  the  crimes  of  murder  and  attempted  as 
sassination,  and  it  is  unnecessary  to  go  fur 
ther,  and  allege  that  they  were  done  with 
the  intent  to  aid  the  rebellion. 

If,  to  support  this  unnecessary  allegation 
as  to  intent,  the  Court  should  admit  evidence 
which  would  be  inadmissible  in  the  civil 
courts  in  a  trial  on  an  indictment  for  the 
crimes  here  charged,  it  would,  I  think,  vio 
late  the  law  of  evidence,  because  the  prose 
cution  has  seen  fit  to  disregard  the  rules  of 
pleading.  The  law  of  evidence  is — and  it 
applies  to  cases  of  conspiracy  as  to  all  other 
criminal  cases — that  the  prosecution  can 
show  no  criminal  acts,  not  part  of  the  res 
gestcc  of  the  offenses  charged,  unless  the 
offenses  charged  consist  of  acts  which  are 
not  in  themselves  obviously  unlawful,  and 
from  the  commission  of  which,  therefore, 
the  evil  intent  can  not  be  presumed — such 
as  uttering  forged  instruments,  or  counterfeit 
money,  or  receiving  stolen  goods. 

Before  any  jury,  or  almost  any  body  of 
men,  proof  that  a  person  charged  with  one 
crime,  and  on  trial,  had  before  that  com- 


his  cause  materially;  and  it  is  to  avoid  that 
result  that  this  wholesome  rule  of  law  has 
been  established. 

That  the  assassination  of  the  President 
grew  out  of  the  spirit  of  the  rebellion,  and 
was  one  of  its  monstrous  developments,  ia 
most  true;  but  the  prisoners  who  are  here 
on  trial,  are  to  be  tried  on  evidence  admis 
sible  under  the  rules  of  law,  and  the  accused 
was  not  called  upon  to  show  here  whether 
or  not,  a  year  or  eighteen  months  before  this 
alleged  conspiracy  was  begun,  he  committed 
the  crime  of  having  taken  up  arms  against 
his  Government.  He  is  not  on  trial  for 
that,  and  1  think  it  is  unjust  to  prejudice 
his  case  by  hearing  and  recording  evidence 
of  it,  if  such  evidence  can,  in  fact,  be  pro 
duced. 

I  refer  the  Court,  in  further  support  of  my 
objection,  to  Wharton's  Criminal  Law,  vol.  1, 
p.  297,  and  Roscoe's  Criminal  Evidence,  p.  76. 

Assistant  Judge  Advocate  BINGHAM.  I 
have  no  desire  to  delay  the  Court;  but  I  am 
very  anxious  to  make  good  what  I  said,  and 
to  vindicate  the  proposition  of  the  Judge 
Advocate  General.  My  proposition  was,  that 
when  the  intent  with  which  a  thing  was  done 
is  put  in  issue,  other  acts  of  the  prisoner  not 
in  issue  on  the  trial,  of  the  same  character, 
may  be  given  in  evidence  to  prove  that  in 
tent.  Now  I  propose  to  read  from  the  book 
which  the  gentleman  himself  has  read;  but 
he  did  not  read  quite  far  enough  : 

"Knowledge  and  intent,  when  material, 
must  be  shown  by  the  prosecution."  (Whar 
ton's  American  Criminal  Law,  p.  309,  sec. 
631.) 

It  becomes  material  here,  because  it  ia 
alleged  as  to  the  conspirators  that  they  con 
spired  with  the  intent  to  aid  this  rebellion, 
both  in  the  charge  and  in  the  specification; 
not  that  they  murdered  with  that  intent,  but 
conspired  to  murder  with  that  intent,  to  aid 
the  rebellion.  The  language  of  this  author 
(Wharton)  is,  "Knowledge  and  intent,  when 
material,  must  be  shown  by  the  prosecution. 
It  is  impossible,  it  is  true,  in  most  cases,  to 
make  them  out  by  direct  evidence,  unless 
they  have  been  confessed,  but  may  be  gath 
ered  from  the  conduct  of  the  party  as  shown 
in  proof;  and  when  the  tendency  of  his  ac 
tions  is  direct  and  manifest,  he  must  always 
be  presumed  to  have  designed  the  result 
when  he  acted." 

As  to  guilty  knowledge,  on  the  same  page 
of  the  book,  the  author  says: 

"The  law  in  this  respect  seems  to  be,  that 
evidence  of  other  acts,  or  conduct  of  a  sim 
ilar  character,  even  although  involving  sub- 
staative  crimes,  is  admissible  to  prove  guilty 
knowledge,"  even  although  it  shows  other 
crimes  not  involved  before  the  Court.  On 
the  very  next  page  the  same  author  says : 

"  The  same  evidence  is  generally  admissi 
ble  to  prove  intent  as  to  show  guilty  knowl 
edge." 


TESTIMONY   CONCERNING   SAMUEL   ARNOLD. 


239 


That  is  to  say,  other  acts,  although  in 
volving  substantive  crime,  may  be  admitted. 
On  the  point  the  gentleman  made,  the  writer 
concludes  on  that  question  by  saying,  "That 
if  the  crime  itself  is  committed,  the  intent 
is  necessarily  presumed  by  the  law."  To  be 
sure  it  is.  But  there  are  two  allegations 
here.  One  is  a  conspiracy — 

Mr.  EWING.     To  murder  the  President. 

Assistant  Judge  Advocate  BINGHAM.  A 
conspiracy,  with  intent  to  aid  the  rebellion, 
to  murder  the  President;  and  then  there  is 
the  murdering  of  the  President  in  aid  of  the 
rebellion,  in  pursuance  of  the  conspiracy. 
Now,  we  are  trying  to  prove  the  intent  with 
which  they  entered  into  this  conspiracy,  and 
executed  it.  This  book,  in  answer  to  that 
suggestion  of  the  gentleman,  says: 

"  A  defendant's  conduct  during  the  res 
gestce,  as  his  manner  at  the  time  of  passing 
the  note,  or  his  having  passed  by  several 
names,  is  also  admissible  for  the  same  pur 
pose;  but  the  intent,  the  guilty  knowledge, 
must  be  brought  directly  home  to  the  de 
fendant;  but  in  no  case  can  evidence  tend 
ing  to  show  it  be  admitted,  until  the  corpus 
delicti  is  first  clearly  shown."  What  then? 
Then  it  may  be. 

Mr.  EWING.     That  is  the  res  gestce. 

Assistant  Judge  Advocate  BINGHAM.  No, 
as  to  the  intent.  What  becomes  of  the  ob 
jection  now  ?  The  body  of  the  crime  has 
been  proved  according  to  the  practice  of  the 
common  law,  as  a  general  thing,  and  the 
only  exception  that  I  know  of,  of  any  note,  is 
the  exception  made  at  common  law  in  cases 
of  conspiracy,  which  the  gentleman  will  re 
member  is  written  in  the  text  of  Starkie. 
Then  what  next?  In  order  to  prove  the 
intent,  you  may  have  other  acts  of  the 
prisoner,  although  they  involve  substantive 
crime;  and  the  same  text  and  section  of 
Wharton  goes  on  to  say : 

"On  the  charge  of  sending  a  threatening 
letter,  prior  and  subsequent  letters  from  the 
person  to  the  party  threatening  may  be  given 
in  evidence,  as  explanatory  of  the  meaning 
and  intent  of  the  particular  letter  upon  which 
the  indictment  is  framed."  What  do  you  say 
to  that? 

Mr.  EWIXG.     I  say  it  does  not  apply  at  all. 

Assistant  Judge  Advocate  BINGHAM.  I 
eay  it  does  apply;  that  sending  prior  and 
subsequent  letters  is  a  distinctive  crime,  for 
which  he  might  also  be  indicted,  and  enter 
ing  into  this  is  a  distinctive  crime,  for  which 
the  party  may  be  also  arraigned;  but  when 
he  entered  it,  he  entered  into  it  to  aid  it,  did 
he  not? 

Mr.  EWINO.  He  did  not  enter  into  that 
to  assassinate  the  President. 

Assistant  Judge  Advocate  BINGHAM.  Yes, 
he  entered  into  it  to  assassinate  the  Presi 
dent;  and  everybody  else  that  entered  into 
the  rebellion,  entered  it  to  assassinate  every 
body  that  represented  this  Government,  that 
either  followed  the  standard  in  the  field,  or 


represented  its  standard  in  the  councils. 
That  is  exactly  why  it  is  german. 

The  Commission  overruled  the  objection. 

WITNESS. — I  can  not  state  positively  of 
my  own  knowledge  that  the  accused,  Samuel 
Arnold,  has  been  in  the  military  service  of 
the  rebellion.  I  have  seen  him  in  Richmond 
with  the  rebel  uniform  on;  whether  it  was 
the  uniform  of  a  private  soldier  or  an  officer, 
I  can  not  remember.  This  was  in  the  year 
1862. 

Cross-examined  by  MR.  EWING. 

I  would  not  say  positively  that  it  was  not 
in  1861  I  saw  him.  I  know  he  had  been 
ill,  but  I  can  not  state  the  year  positively.  I 
saw  him  several  times;  it  was  since  the  re 
bellion. 

JAMES  L.  McPHAiL. 
Recalled  for  the  Prosecution. — May  18. 
[Exhibiting  the  "Sam"  letter  to  the  witness.] 

I  think  that  letter  is  in  the  handwriting 
of  Samuel  Arnold;  the  direction,  "  J.  Wilkes 
Booth,"  I  should  also  think  is  his.  I  am 
acquainted  with  the  handwriting  of  the 
prisoner,  from  having  received  a  letter  of  his 
from  his  father,  dated  the  12th  of  April, 
from  Fortress  Monroe,  the  writing  of  which 
looks  similar  to  that  of  this  letter  signed 
"Sam."  i 

LITTLETON  P.  D.  NEWMAN. 
For  the  Prosecution. — May  18. 

I  know  the  accused,  Samuel  Arnold.  On 
the  9th,  10th,  or  12th  of  September,  Mr. 
Arnold  had  been  helping  us  to  thrash  wheat 
at  a  neighbor's,  and  during  that  time  there 
was  a  letter  brought  to  him.  In  that  letter 
there  was  either  a  twenty  or  a  fifty-dollar 
note;  I  am  not  positive  which.  He  read 
the  letter,  and  remarked  that  he  was  flush 
of  money,  or  something  to  that  effect.  After 
having  read  the  letter,  he  handed  it  to  me, 
and  I  read  some  half  a  dozen  lines,  possi 
bly — not  more.  I  did  not  understand  it;  it 
was  very  ambiguous  in  its  language;  and  I 
handed  it  back  to  him,  and  asked  him 
what  it  meant.  He  remarked  that  some 
thing  big  would  take  place  one  of  these 
days,  or  be  seen  5p  the  paper,  or  something 
to  that  effect  That  was  about  all  that  oc 
curred. 

1  do  not  remember  that  I  saw  the  signa 
ture  to  the  letter;  if  I  did,  I  do  not  remem 
ber  what  it  was. 

The  JUDGE  ADVOCATE  here  announced  that 
the  testimony  on  the  part  of  the  Government 
had  closed. 

See  testimony  of 

William  E.  Cleaver page     71 

Mrs.  Mary  Van  Tine "     222 

Billy  Williams "     223 

Edward  C.  Stewart...,  "    223 


240 


THE  CONSPIRACY    TRIAL. 


DEFENSE  OF  SAMUEL  ARNOLD 


WILLIAM  S.  ARNOLD. 

For  the  Defense. — May  31. 

By  MR.  EWING. 

I  am  brother  to  the  prisoner,  Samuel 
Arnold,  and  reside  at  Hookstown,  Baltimore 
County,  Md.  From  the  21st  of  March  up 
to  Saturday,  the  25th,  my  brother  was  with 
me  in  the  country,  at  Hookstown. 

We  went  into  Baltimore  on  Saturday  even 
ing,  the  25th,  and  returned  to  the  country 
again  on  Sunday,  the  26th.  We  came  again 
into  town  either  on  Tuesday  or  Wednesday. 
I  went  to  the  country  again,  and  came  in 
on  Friday  night.  He  went  out  with  me  on 
the  1st  of  April,  and  in  the  afternoon  he 
went  to  Fortress  Monroe. 

As  I  wa8v  coming  into  Baltimore  on  the 
21st,  I  saw  him  in  the  coach  going  to  Hooks- 
town.  From  the  21st  to  the  25th,  I  saw  him 
every  day,  and  he  slept  with  me  every  night. 
We  arrived  in  Baltimore  on  the  25th,  be 
tween  5  and  6  o'clock.  I  saw  my  brother 
at  supper  at  my  father's,  and  when  1  went 
to  bed,  between  9  and  10  o'clock,  he  was  in 
bed.  When  we  got  up  the  next  morning,  I 
went  down  to  the  Government  bakery,  left 
him  at  home,  told  him  I  would  be  back  in 
about  half  an  hour,  and  we  would  go  out  in 
the  country  together.  When  I  came  back 
he  was  home,  and  between  9  and  10  o'clock 
that  morning  we  (started  for  the  country. 
He  staid  there  until  the  28th  or  29th,  and  1 
saw  him  every  day  and  every  night.  It  was 
on  either  a  Tuesday  or  a  Wednesday  that 
he  left,  about  8  o'clock.  I  saw  him  next  on 
Friday,  when  I  came  in  from'  the  country  to 
my  father's;  my  brother  was  there  to  sup 
per.  He  was  at  home  at  my  father's  on 
that  night.  I  did  not  sleep  with  him  ;  my 
brother  did;  and  I  slept  in  the  same  room. 
The  next  day,  Saturday,  I  took  him  out  in 
the  country.  We  started  about  8  o'clock,  and 
came  in  between  12  and  1  at  noon.  In  the 
afternoon,  between  3  and  4,  he  left  for  For 
tress  Monroe.  That  was  on  the  1st  of 
April.  I  am  certain  about  these  dates. 
Hookstown  is  about  six  miles  from  Balti 
more. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  can  fix  the  date  of  the  21st  as  being 
the  day  on  which  I  saw  my  brother  in  the 
coach  going  to  Hookstown,  as  I  was  going 
to  Baltimore,  because  on  that  day  Mr. 
Buffington,  of  the  Three-mile  House,  had  a 
sale  of  farming  utensils,  and  Mr.  Ditch  had 
a  sale  the  day  before,  at  which  I  bought 
some  things,  and  entered  them  in  my  book. 


I  do  not  know  where  my  brother  was  be 
tween  supper  and  bedtime  on  the  next  Satur 
day;  I  went  out  and  left  him  at  home,  and 
he  was  in  bed  when  I  came  back.  On  the 
following  day  he  went  back  to  Hookstown, 
and  returned  to  Baltimore  on  the  Tuesday 
or  Wednesday.  He  gave  those  arms  to  me 
on  the  1st  of  April,  when  he  went  to  For 
tress  Monroe.  He  had  had  them  out  in 
the  country  from  the  day  he  went  there,  the 
21st.  The  pistol  was  loaded  when  it  was 
given  to  me. 

[The  pistol  found  in  Arnold's  bag  at  Fortress  Monroo 
shown  to  the  witness.] 

That  is  not  the  pistol  my  brother  gave  to 
me;  he  gave  me  the  pistol  and  knife  by 
themselves.  They  were  not  in  the  valise.  I 
did  not  give  them  to  anybody,  but  I  remem 
ber  my  father  coming  to  the  desk  where  they 
were  placed,  getting  them,  and  taking  them 
to  Baltimore.  It  was  a  large-sized  pistol, 
something  like  the  one  just  shown  me. 

By  MR.  EWING. 

On  the  20th  of  March,  I  saw  my  brother 
shoot  off  two  rounds  out  of  the  pistol,  at  the 
chickens;  then  he  went  into  the  house  and 
reloaded  it.  I  was  at  the  door,  and  did  no* 
see  him  reload  it. 

FRANK  ARNOLD. 

For  the  Defense.— May  31. 
By  MR.  EWING. 

The  accused,  Samuel  Arnold,  is  my  brother. 
I  generally  reside  at  my  father's  in  Balti 
more.  I  saw  my  brother  on  the  30th  and 
31st  of  March  last;  Thursday  and  Friday. 
On  the  Friday  morning  I  gave  him  a  letter, 
which  came  for  him  from  Mr.  Wharton,  in 
reference  to  his  application  for  a  situation, 
telling  him  to  come  down,  and  he  went  down 
on  Saturday  afternoon,  the  1st  of  April,  on 
the  Norfolk  boat,  at  about  half-past  4.  Cap 
tain  Moffatt  of  the  Eighth  Maryland  took  a 
state-room  with  him. 

By  ASSISTANT  JUDGE  ADVOCATE  BINGHAM, 

My  brother  had  made  application  for  em 
ployment  to  Mr.  Wharton,  but  I  do  not  know 
the  date. 

JACOB  SMITH. 

For  the  Defense.— May  31 
By  MR.  EWING. 

I  live  in  Hookstown,  Baltimore  County, 
Md.;  about  half  a  mile  from  the  residence 
of  William  S.  Arnold,  brother  of  the  prisoner, 
Samuel  Arnold.  Our  farms  join.  From  the 
20th  to  the  22d  of  March  last,  up  to  near  the 


DEFENSE    OF   SAMUEL  ARNOLD. 


241 


30th,  as  near  as  I  can  get  at  it,  I  saw  the 
prisoner,  Samuel  Arnold,  nearly  every  day; 
sometimes  three  or  four  times  a  day. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 
BURNETT. 

I  can  not  be  sure  whether  it  was  the  20th 
or  22d  that  I  saw  him.  I  do  not  think  it 
was  the  23d  or  19th.  I  have  no  particular 
reason  for  fixing  the  date;  only  an  indistinct 
recollection  of  it.  It  is  just  about  the  same 
with  the  30th;  I  kept  no  note  of  it. 

By  MR.  EWIXG. 

I  was  over  at  his  brother's  place  several 
times  during  that  period.  I  used  to  go  there 
for  marketing  stuff  to  take  to  the  city;  and 
I  used  to  go  right  in  the  field  and  get  it.  It 
was  only  on  those  occasions  that  1  saw  him 
on  his  brother's  place,  and  coming  over. 

CHARLES  B.  HALL. 

For  the  Defense. — June  2. 

By  MR.  EWING. 

For  the  past  two  months  I  have  been  at 
Fortress  Monroe,  as  clerk  to  Mr.  Wharton, 
a  sutler  there.  His  store  is  oiitside  of  the 
fortification,  at  what  is  called  "Old  Point." 
I  got  acquainted  with  the  prisoner,  Samuel 
Arnold,  at  Mr.  Wharton's  store.  He  came 
there  the  latter  part  of  March,  or  1st  of 
April.  He  was  employed  by  Mr.  Wharton 
to  assist  him  in  book-keeping.  I  think  he 
staid  there  two  weeks  and  one  day.  I  saw 
him  every  day,  but  not  all  the  time. 

I  was  engaged  in  another  place  part  of 
the  time.  Mr.  Wharton  lias  the  contract  for 
Fortress  Monroe.  I  was  engaged  there  from 
about  7  o'clock  until  2.  I  had  business  then 
at  the  lower  store;  and  at  about  5  o'clock  I 
would  return. 

I  can  not  say  positively,  but  I  think  it 
was  about  the  1st  of  March  that  he  made 
the  application  in  writing  for  employment. 
I  only  know  of  one  letter  from  him,  the 
one  I  answered,  telling  him  to  come,  and  he 
came  in  about  a  week.  Major  Stevens,  a 
Government  officer,  has  Arnold's  letter. 
Arnold  staid  at  the  lower  store  and  slept  at 
Mr.  Wharton's.  I  saw  him  every  night. 

Cross-examined  by  ASSISTANT  JUDGE  ADVOCATE 

BlNGHAM. 

I  was  not  at  all  acquainted  with  him 
before  he  came  there.  He  opened  the  cor 
respondence  himself,  as  far  aa  I  know,  in 
March  last. 

GEORGE  CRAIG. 
For  the  Defense.— May  31. 
By  MR.  EWING. 

I  have  lived  at  Old  Point  during  the  past 
two   months,   and   have    been    employed    as 
salesman    in  Mr.  Wharton's  store.     I  have 
16 


seen  the  prisoner,  Samuel  Arnold,  there;  he 
was  a  clerk — chief-clerk,  I  believe — in  the 
same  establishment.  He  came  there  on  a 
Sunday  morning,  some  time  in  the  latter  part 
of  March  or  the  1st  of  April,  and  remained 
there  about  two  weeks,  up  to  the  time  of 
his  arrest.  I  saw  him  every  day  during  that 
time. 

MINNIE  POLE. 

For  the  Defense. — June  7. 

I  reside  in  Baltimore.  I  am  acquainted 
with  the  prisoner,  Samuel  Arnold.  I  saw 
him  in  that  city  on  the  20th,  27th  and  28th 
of  April.  On  the  20th,  I  saw  him  in  an 
omnibus,  going  to  Hookstown;  and  on  the 
28th,  I  saw  him  at  our  house  on  his  way  to 
Baltimore.  I  have  not  seen  him  since,  until 
now. 

EATON  G.  HORNER. 

For  the  Defense. — June  6. 

By  MR.  EWING. 

The  facts  stated  to  me  by  the  accused, 
Samuel  Arnold,  to  which  I  have  testified, 
were  communicated  to  me  by  Arnold  at 
Fortress  Monroe.  He  did  not  speak  of  any 
thing  that  "occurred  on  the  boat.  The  con 
fession  of  Samuel  Arnold,  referred  to  by 
William  McPhail  was  written  in  Marshal 
McPhail's  office. 

JOHN  W.  WHARTON. 

For  the  Defense. — June  7. 

By  MR.  EWING. 

I  live  in  the  city  of  Baltimore;  my  place 
of  business  is  at  Fortress  Monroe,  outside. 

The  prisoner,  Samuel  Arnold,  was  in  my 
employ  from  the  2d  of  April  to  the  17th, 
when  he  was  arrested.  He  was  employed 
by  the  week  as  a  clerk.  I  was  absent  about 
three  days  during  that  time,  but  I  have  rea 
son  to  believe  he  was  there  all  the  time,  or 
I  should  have  been  told  of  his  absence.  He 
was  employed  by  me  in  consequence  of  a 
etter  received  by  me  from  his  father;  also 
one  from  himself. 

Q.  In  that  letter  did  he  make  any  reference 
;o  the  business  in  which  he  had  theretofore 
3een  engaged  ? 

Assistant  Judge  Advocate  BINGHAM  re 
plied,  that  if  the  letter  were  here,  it  would 
:>e  utterly  inadmissible  in  regard  to  any 
thing  contained  in  it  about  his  former  pur 
suits  or  whereabouts,  and  doings  of  any  sort, 
for  the  simple  reason  that  a  party  could 
not,  either  in  writing  or  orally,  make  evi 
dence  at  his  pleasure,  to  bar  the  doors  of 
justice  against  the  power  of  the  Government, 
which  he  is  charged  to  have  offended.  Here 
tofore,  testimony  had  been  admitted  as  to  the 
contents  of  the  letter,  so  far  as  to  show  that 
Arnold  had  applied  to  the  witness  for  em 
ployment.  That  had  been  admitted,  because 


242 


THE    CONSPIRACY    TRIAL. 


it  seemed  perhaps  to  be  fair  to  the  accused 
without  doing  injustice  to  the  Government. 
He  had  the  benefit  of  that  application,  but 
the  proposition  now  made  was  entirely  inad 
missible. 

Mr.  EWING  stated  that  it  had  been  proved 
that  the  letter  in  question  was  taken  from 
the  store  of  the  witness  by  Major  Smith,  an 
officer  of  the  United  States,  at  the  time  of 
Arnold's  arrest;  the  Judge  Advocate  "had 
been  requested  some  days  since  to  produce 
the  letter,  and  he  had  been  unable  to  find 
it;  so  that  if  the  letter  itself  would  be  ad 
missible  in  evidence,  it  was  now  competent 
to  prove  its  contents  by  parol  It  was  a 
declaration  by  the  prisoner,  Arnold,  at  the 
time  of  his  application  to  the  witness,  as  to 
his  having  abandoned  the  business  in  which 
he  had  formerly  been  engaged.  Under  the 


latitude  of  examination  which  had  been  in 
dulged  in  on  the  part  of  the  prosecution,  this 
proof  might  fairly  be  admitted. 

The  JUDGE  ADVOCATE.  We  have  estab 
lished  that  intimacy  clearly  in  their  associa 
tion  in  Washington.  We  are  simply  follow 
ing  them  to  Baltimore,  and  showing  that 
there  they  were  in  correspondence  with  each 
other.  It  is  a  fact  of  the  same  order,  and 
although  it  may  not  have  the  same  force 
with  the  other  fact,  its  tendency  certainly  is 
in  the  same  direction.  We  do  not  offer  the 
contents  of  the  letter;  we  offer  the  fact  of 
their  correspondence  with  each  other. 

The  Court  sustained  the  objection. 

Each  of  the  counsel  for  the  accused  here 
announced,  on  behalf  of  his  client,  that  the 
defense  was  closed. 


Tuesday,  May  16,  1865. 

DISCUSSION     ON    THE    DAILY     READING     OF    THE 
RECORD. 

The  PRESIDENT.  One  of  the  members  of 
the  Court  has  moved  that  the  reading  of  the 
record  be  dispensed  with,  inasmuch  as  the 
counsel  on  the  part  of  the  prisoners  are  fur 
nished  with  an  official  copy  of  the  record, 
and  have  an  opportunity  of  examining  it 
during  the  intervals  between  the  meetings  of 
the  Court,  and  can  object  to  any  thing  that 
is  incorrect,  when  they  come  into  Court,  if 
they  find  any  inaccuracies. 

Colonel  TOMPKINS.  Besides,  it  is  very  ac 
curately  published  in  the  morning  papers. 

Mr.  EWING.  If  the  Court  will  allow  me,  I 
will  state  that  the  reporters  are  not  able  to 
furnish  us  immediately  with  an  official  copy 
of  the  record;  it  is  always  behindhand  a  day 
or  so;  but  inasmuch  as  the  record  is  pub 
lished  quite  accurately  in  the  Intelligencer, 
from  the  notes  of  the  reporters,  if  the  Court 
will  allow  us  the  privilege  at  any  time,  even 
though  it  be  not  the  day  after  the  examina 
tion  of  a  witness,  in  case  we  discover  an 
error,  to  ask  that  the  witness  be  recalled,  it 
would  be  satisfactory,  so  far  as  I  am  con 
cerned.  If  this  arrangement  is  made,  it  will 
be  necessary  for  the  Judge  Advocate  to  de 
tain  witnesses  for,  say,  two  days  after  their 
examination,  so  that  we  may  have  time  to 
read  the  testimony  as  published  in  the  paper, 
or  as  furnished  us  by  the  reporters.  We 
have  not  yet  been. furnished  with  the  last  of 
yesterday's  proceedings,  nor  has  that  portion 
been  published  in  the  paper. 

The  PRESIDENT.  I  should  think' a  deten 
tion  of  one  day  would  be  ample. 

Mr.  EWING.  If  the  witnesses  who  were 
examined  yesterday  were  detained  until  after 
the  Court  meets  to-morrow,  I  think  that 


would  be  sufficient.  The  evidence  of  the 
last  witnesses  examined  yesterday  will  prob 
ably  be  published  in  the  Intelligencer  to 
morrow. 

The  PRESIDENT.  Has  the  Judge  Advocate 
any  objection  to  that  arrangement? 

The  JUDGE  ADVOCATE.  I  do  not  wish  to 
embarrass  the  Court,  certainly,  by  any  sug 
gestions  of  mine.  I  am  as  anxious  for  the 
dispatch  of  business  as  anybody  can  be;  but 
if  this  precedent  is  now  established,  it  will 
be,  I  think,  not  only  the  first  one  which  has 
been  set  in  the  military  service,  but  the  first 
in  the  civil  service.  I  never,  in  my  whole 
life,  have  been  in  connection  with  any  court, 
the  proceedings  of  which  were  not  read  over 
in  the  hearing  of  the  court  itself,  before 
they  were  declared  by  the  court  to  be  accu 
rate  and  complete.  Although  I  have  as 
much  confidence  in  the  accuracy  of  our  re 
porters  as  anybody  can  have,  I  think  it 
would  be  a  dangerous  example  to  set,  and  I 
would  rather  see  it  in  any  case  that  has 
arisen  in  the  military  service  of  the  country 
than  in  this,  where  there  are  so  many  lives 
at  stake,  and  where  it  is  so  vastly  important, 
not  only  that  there  should  be  strict  accu 
racy,  but  that  the  country  should  feel  assured 
that  it  is  so,  and  that  all  the  precautions 
necessary  to  secure  that  result,  have  been 
resorted  to.  If  it  shall  be  known  hereafter, 
in  connection  with  this  trial,  that  the  Court- 
departed  from  the  usages  of  the  service,  and 
did  not  even  have  its  own  record  read  over, 
but  trusted  simply  to  the  reporters  for  ac 
curacy,  it  might  go  very  far  to  shake  the 
confidence  of  the  country  in  the  accuracy  of 
these  reports,  and  would  certainly  leave  an 
opening  for  criticism. 

General  FOSTER.  I  think  the  reading 
should  be  proceeded  with  every  morning  for 
the  purpose  of  correction,  if  any  correction 
should  be  necessary. 


M'CULLOUGH'S  AFFIDAVIT. 


243 


The  PRESIDENT.  I  am  very  much  inclined, 
after  hearing  the  opinion  of  the  Judge  Ad 
vocate  General,  to  change  my  first  impression 
on  the  subject,  and  I  will  vote  against  the 
proposition,  though  I  thought  favorably  of  it 
at  first. 

The  motion  was  then  withdrawn,  and  the 
record  was  read  and  approved. 


'    Thursday,  June  8,  1865. 

Mr.  AIKEN  proposed  to  offer  in  evidence  a 
telegraphic  dispatch  from  Montreal,  Canada, 
containing  an  affidavit  of  John  McCullough, 
made  before  the  Vice-Consul  of  the  United 
States  in  Montreal,  for  the  purpose  of  con 
tradicting  a  statement  made  by  Louis  J. 
Weichmann,  a  witness  for  the  prosecution, 
that  he  had  seen  McCullough  at  Booth's 
room  in  the  National  Hotel  on  the  2d  day 
of  April  last 

Assistant  Judge  Advocate  BINGHAM  ob 
jected  to  the  introduction  of  the  paper.  It 
was  a  wholly  immaterial  question  whether 
McCullough  ever  met  Weichmann  or  not. 

Mr.  AIKEN  claimed  that  it  was  competent 
to  disprove  any  statement  made  by  Weich 
mann  which  was  not  true.  Mr.  Weichmann 
had  sworn  to  certain  statements  which  were 
contradicted  in  this  sworn  affidavit  of  Mr. 
McCullough.  If  he  was  mistaken  in  such 
email  matters,  might  he  not  also  be  mistaken 
in  the  greater  matter  of  the  guilt  or  inno 
cence  of  some  of  the  accused. 

Assistant  Judge  Advocate  BINGHAM  replied 
that  this  was  an  illegal  mode  of  attacking  a 
witness.  If,  on  cross-examination,  a  witness 
is  asked  an  immaterial  question,  his  answer 
concludes  the  party  asking  the  question. 

The  JUDGE  ADVOCATE  proposed  to  read  to 
the  Court  an  authority  on  this  point,  as  it 
was  raised  so  often,  and  might  be  again ; 
and  he  wished  the  authority  borne  in  mind, 
namely: 

"  Irrelevant  questions  will  not  be  allowed 
to  be  put  to  a  witness  on  cross-examination, 
although  they  relate  to  facts  opened  by  the 
other  party,  but  not  proved  in  evidence. 
Nor  can  a  witness  be  cross-examined  as  to 
any  facts  which,  if  admitted,  would  be  col 
lateral  and  wholly  irrelevant  to  the  matters 
in  issue,  for  the  purpose  of  contradicting 
him  by  other  evidence,  and  in  this  manner 
to  discredit  his  testimony.  And  if  the  wit 
ness  answers  such  an  irrelevant  question 
before  it  is  disallowed  or  withdrawn,  evidence 
can  not  afterward  be  admitted  to  contradict 
his  testimony  on  the  collateral  matter." 
(Benet,  p.  307.) 

Assistant  Judge  Advocate  BINGHAM  stated 
that  the  same  position  was  sustained  by  Ros- 
coe's  Criminal  Evidence,  p.  87,  from  which 
he  read  the  following  extract: 

"  Evidence  to  contradict  the  opponent  wit 
nesses. — This  may  always  be  given  on  poi  •  jts 


relevant  to  the  issue.  But  if  any  opponent 
witness  be  asked  questions  on  cross-examin 
ation  which  are  not  relevant  to  the  issue — 
which,  as  we  shall  hereafter  see,  may  be 
done,  (p.  146) — the  answer  must  be  taken, 
and  he  can  not  be  contradicted  by  other  ev 
idence.  Spenceley  v.  DeWilloV,  1  East.  108; 
K  v.  Yewin,  2  Camp.,  638,  where  a  witness 
was  asked  whether  he  had  not  been  charged 
with  robbing  the  prisoner,  his  master,  which 
he  denied,  and  Lawrence,  J.,  refused  to  allow 
him  to  be  contradicted  on  this  point."  (Ros- 
coe's  Criminal  Evidence,  p.  87.) 
The  Court  sustained  the  objection. 


June  8,  1865. 

Mr.  EWING  offered  in  evidence,  on  the  part 
of  the  defense,  a  copy  of  General  Orders 
No.  26,  War  Department,  Adjutant-General's 
Office,  Washington,  February  2,  1863,  as  fol 
lows  : 

WAH  DEPARTMENT, 
ADJUTANT-GENERAL'S  OFFICE, 
Washington,  February  2,  1863. 

General  Orders  No.  26. 

The  district  of  country  north  of  the  Poto 
mac  River,  from  Piscataway  Creek  to  An 
napolis  Junction  and  the  mouth  of  the 
Monocacy,  and  south  by  Goose  Creek  and 
Bull  Run  Mountain  to  the  mouth  of  the 
Occoquan,  will  constitute  the  Department  of 
Washington,  and  troops  in  that  department 
will  constitute  the  Twenty-second  Army  Corps, 
to  be  commanded  by  Major-General  Heintzel- 
man. 

Bv  order  of  the  Secretary  of  War. 
L.  THOMAS, 

Adjutant- General. 

Mr.  EWING,  with  the  consent  of  the  Judge 
Advocate,  offered  as  evidence  of  the  same 
validity,  as  if  the  same  fact  were  testified  to 
by  Mr.  John  McCullough,  the  actor,  on  the 
stand,  the  following  telegraphic  dispatch  : 

MONTREAL,  June  2,  1865. 
To  John  T.  Ford,  National  Hotel : 

I  left  Washington  on  Monday  evening, 
March  26th,  and  have  not  been  there  since. 
You  can  have  my  testimony  before  American 
Consul  here,  if  requisite. 

JOHN  MCCULLOUGH. 

The  JUDGE  ADVOCATE  offered  in  evidence, 
for  the  prosecution,  the  proclamation  of  the 
President  of  the  United  States,  for  the  in 
formation  and  government  of  the  army  and 
all  concerned,  dated  September  25,  1862,  with 
accompanying  certificate  of  the  Secretary  of 
War,  dated  May  30,  1865. 

[See  Appendix,  page  419.] 

The  JUDGE  ADVOCATE  also  offered  in  evi 
dence,  for  the  prosecution,  General  Orders 
No.  100,  Adjutant-General's  Office,  Washing 
ton,  April  24,  1863,  containing  "Instructions 


244 


THE    CONSPIRACY    TKIAL. 


for  the  government  of  the  armies  of  the 
United  States  in  the  field,"  prepared  by 
Francis  Leiber,  LL.D.,  and  revised  by  a 
Board  of  Officers,  of  which  Major-General 
E.  A.  Hitchcock  was  president. 

[See  Appendix,  page  410.] 


June  12,  1865. 

Assistant  Judge  Advocate  BINGHAM  offered 
in  evidence  certified  copies  of  the  journals 
of  the  joint  sessions  of  the  Senate  and  the 
House  of  Representatives  on  the  2d  Wednes 
day  of  February,  1861,  and  the  2d  Wednes 
day  of  February,  1865  (certified  to  be  correct 
copies  by  the  Clerk  of  the  House  of  Repre 
sentatives,  under  the  seal  of  that  House,) 
showing  that  Abraham  Lincoln  and  Hannibal 
Hamlin  were  elected  President  and  Vice- 
President  of  the  United  States,  for  the  term 
oC  four  years,  commencing  on  the  4th  day 
of  March,  1861,  and  that  Abraham  Lincoln 
and  Andrew  Johnson  were  elected  President 
and  Vice-President  of  the  United  States,  for 
the  term  of  four  years,  commencing  on  the 
4th  day  of  March,  1865. 

[Votes  for  President  and  Vice-President  of  the  United 

States  for  the  constitutional  term,  commencing  on  the 

•1th  day  of  March,  1861. 

Number  of  States 33 

Number  of  Electoral  Votes 303 

Abraham  Lincoln,  for  President ISO 

John  ('.  Breckinridge,  for  President 72 

John  Bell,  of  Tennessee,  for  President 39 

Stephen  A.  Douglas,  for  President 12 

Hannibal  Hamlin,  for  Vice- President 180 

Joseph  Lane,  for  Vice-President 72 

Edward  Everett,  for  Vice-PreMdent 3l» 

Herschel  V.  Johnson,  for  Vice-President 12 

Votes  for  President  and  Vice-President  of  the  United 

States  for  the  constitutional  term,  commencing  on  the 

4th  day  of  March,  1865. 
Number  of  States    (Kansas,   West  Virginia,  and 

Nevada  being  added  since  1861) 36 

Number  of  Electoral  Votes  (Virginia,  iSorth  Caro 
lina,  South  Carolina,  Georgia,  Tennessee,  Louis 
iana,  Mississippi,  Alabama,  Arkansas,  Florida, 

and  Texas  not  voting; 233 

Abraham  Lincoln,  for  President.., 212 

George H.  McUellan,  for  President 21 

Andrew  Johnson,  for  Vice  President 212 

George  II.  Pendleton,  for  Vice-President 21 

Certified  to  as  being  a  correct  extract  from  the  Journal 

of  the  Senate  of  the  United  States  of  13th  February,  1861, 

and  8th  February,  1865,  respectively. 

(.Signed,)  JOHN  W.  FORNEY.] 


!  Abraham  Lincoln,  on  the  15th  of  April, 
1 1865  ? 

A.  Yes,  sir. 

Assistant  Judge  Advocate  BINGHAM  offered 
in  evidence  a  certified  copy,  under  the  seal 
of  the  Department  of  State,  of  the  oath  of 
office  of  Andrew  Johnson,  as  President  of 
the  United  States,  hefore  the  Chief-Justice, 
on  the  15th  day  of  April,  1865. 

Also  a  duly  certified  copy  of  the  resolu 
tion  of  the  Senate,  dated  March  5,  1861,  con 
senting  to  the  appointment,  and  advising  the 
same,  of  William  II.  Seward  as  Secretary  of 
State  of  the  United  States;  and,  also,  a  duly 
certified  copy  of  the  commission  of  William 
H.  Seward  as  Secretary  of  State  of  the  United 
States,  dated  March  5,  1861,  signed  by  Abra 
ham  Lincoln,  President  of  the  United  States, 
and  attested  by  J.  S.  Black,  Secretary  of 
State,  under  the  seal  of  the  United  States. 


BRIGADIER-GENERAL  E.  D.  TOWNSEND. 

Recalled  for  the  Prosecution. 

Q.  Do  you  know  the  fact  that  Abraham 
Lincoln  acted  as  President  of  the  United 
States  from  and  after  the  4th  of  March,  1861. 
until  the  15th  of  April,  1865,  when  he  died? 

A.  Yes,  sir;  I  had  frequent  official  inter 
course  with  him  as  President  of  the  United 
States  during  that  time. 

Q.  Do  you  know  the  fact  that  Hannibal 
Hamlin  acted  as  Vice-President  during  the 
four  years  preceding  the  4th  day  of  March, 
1865? 

A.   Yes,  sir. 

Q.  And  that  afterward  Andrew  Johnson 
acted  as  Vice-President  until  the  death  of 


June  14,  1865. 


Mr.  EWING.  On  behalf  of  Mr.  Stone  and 
myself,  who  are  jointly  counsel  for  Dr.  Sam 
uel  A.  Mudd,  and  who  separately  represent 
other  of  the  defendants,  I  ask  leave  to  say 
to  the  Court,  that  the  arguments  in  defense 
of  those  of  the  prisoners  we  represent,  can 
not  be  made  in  such  manner  as  to  give  effi 
cient  aid  to  the  Court  in  its  investigation  of 
the  questions  arising  under  the  charge  and 
specification  preferred,  unless  the  said  charge 
and  specification  are  relieved  of  ambiguity 
by  an  opening  statement  from  the  Judge 
Advocate,  indicating  the  offense  or  offenses, 
for  the  commission  of  which  he  may  claim 
those  of  the  accused  whom  we  represent 
should  severally  be  convicted,  and  the  laws 
creating  such  offense  or  offenses,  and  pre 
scribing  the  penalties  thereof.  In  support  of 
this  suggestion  we  submit  the  following  rea 
sons  : 

I  There  is  but  one  charge,  inform,  against 
the  accused;  but,  in  fact,  there  seem  to  be 
four  charges,  each  alleging  the  commission 
of  a  separate  and  distinct  offense,  as  follows: 

1.  Maliciously,  unlawfully,  and  in  aid  of 
the    existing    armed     rebellion     against    the 
United  States  of  America,  combining,  confed 
erating,  and   conspiring  to  kill  and  murder, 
within  the  military  department  of  Washing 
ton,    and    within   the    defenses    of  the    city, 
Abraham  Lincoln,  late,  and  at  the   time,  of 
conspiring,  President  of  the    United   States, 
and    Commander-in-chief  of   the    army    and 
navy   thereof;    Andrew    Johnson,  then  Vice- 
President  of  the  United  States;    William  H. 
Seward,  Secretarv  of  State;  and  Ulysses   S. 
Grant,  Lieutenant-General   of  the  army,  etc. 

2.  In  pursuance  of  said  malicious,  unlaw 
ful,  and    traitorous   conspiracy,   maliciously, 
unlawfully,  and   traitorously   murdering    the 
said  Abraham  Lincoln,  President,  etc. 

3.  Maliciously,    unlawfully,    and    traitor- 


DISCUSSION. 


245 


ously  assaulting,  with  intent  to  kill  and  mur 
der,  the  said  William  H.  Seward,  Secretary 
of  State,  etc. 

4.  Lying  in  wait  with  intent  maliciously, 
unlawfully,  and  traitorously  to  kill  and  mur 
der  the  said  Andrew  Johnson,  then  Vice- 
President  of  the  United  States,  and  Ulysses 
S.  Grant,  Lieutenant-General,  etc. 

The  offenses  enumerated,  as  aforesaid,  in 
the  said  charge,  are  separate  and  distinct, 
and  we,  therefore,  ask  that  the  Judge  Advo 
cate  should  state,  in  regard  to  those  of  the 
accused  whom  we  represent,  of  which  of  said 
offenses,  under  the  evidence,  he  claims  they 
should  each  be  convicted. 

II.  We  further  respectfully  say  we  are  not 
advised    of  the   law    creating    and   definin 
certain  of  said  offenses,  as  the  same  are  laid 
in    the    said  charge,  and  therefore  ask  that 
the    Judge    Advocate    specify    the    law  cre 
ating  said  offenses,  or  the  code  or  system  of 
laws  in  which  the  same  may  be  found,  that 
we  may  be  able  to  present  the  case  of  such 
of  the  accused  as  we  represent,  in  a  manner 
conducive  to  the  ends  of  justice,  and  there 
fore  more  satisfactory  to  the  Court. 

The  crime  of  murder — assault  with  intent 
to  kill  and  murder,  conspiracy  to  murder, 
and  conspiracy  in  aid  of  the  rebellion — are 
svell  understood  and  accurately  defined  by 
the  common  or  statute  law,  and  for  the  com 
mission  of  those  crimes  just  and  appropriate 
penalties  have  been  prescribed  ;  but  no  laws 
known  to  us  define  the  crime  of  "traitor 
ously"  murdering,  or  of  "traitorously"  as 
saulting  with  intent  to  kill  and  murder,  or 
of  lying  in  wait  "traitorously"  to  kill  and 
murder.  If  the  last-named  offenses,  designa 
ted  and  described  in  the  charge,  are  created 
crimes  by  some  code  of  laws  unknown  to  us, 
and  penalties  are  prescribed  for  their  com 
mission  by  such  code,  it  is  respectfully  sub 
mitted  that  to  advise  us  of  what  that  code 
is,  before  we  are  called  upon  to  present  our 
arguments,  could  certainly  not  defeat,  and 
might  materially  promote  the  ends  of  justice. 

III.  We  further  respectfully  state,  that  the 
Constitution   of  the   United   States   provides 
that  in  all  criminal  prosecutions  the  accused 
shall    be  entitled  to  be   informed  of  the   na 
ture   and   cause  of  the  accusations    against 
them.     That  several  of  the  offenses  charged 
are,  if  they  are  crimes  defined  by  the  Consti 
tution  or  the  laws,  offenses   in   the  trial  of 
which  rules  of  evidence  are  applicable,  dif 
ferent  in  important  respects  from  the  general 
rules  of  criminal  evidence.     And  the  accused 
have   the  right  now  (as  they  have  had  the 
right   at  all    prior   stages    of   this    trial)    to 
know  for  which  of  the  offenses  each  is  sev 
erally    held,   so  that  counsel  and   the  Court 
may    know  what   part   of  the  evidence  pre 
sented   against  all  is  applicable  to  the  cases 
of  the  accused  severally.     And  that  the  con 
stitutional  guaranty  above  referred  to,  in  our 
judgment,  entitles  the  accused  to  such  desig 
nation   of  the  specific  charges  on   which  it 


may  be  claimed  each  should  be  convicted,  as 
well  as  to  an  indication  of  the  code  of  lawa 
by  which  the  last  three  of  the  offenses  as 
charged  are  defined,  and  their  punishments 
provided. 

The  JUDGE  ADVOCATE.  If  the  Court  please, 
when  I  recall  the  character  of  the  pleadings 
in  this  case,  the  complete  distinctness  of  the 
charge  and  of  tiie  specification,  I  confess 
myself  somewhat  surprised  at  the  appeal 
which  is  now  made  to  the  Government  on 
behalf  of  the  counsel  for  the  prisoners.  Cer 
tainly,  if  I  were  to  go  over  the  ground  again, 
either  orally  or  by  writing,  I  could  not  make 
known  to  the  counsel  with  more  certainty, 
or  with  more  appropriateness  or  terseness  of 
language,  than  has  been  already  employed  in 
these  pleadings,  the  precise  offenses  with 
which  the  prisoners  are  charged,  on  which 
they  have  been  arraigned,  in  reference  to 
which  the  entire  range  of  inquiry  has  been 
directed,  and  upon  which  the  judgment  of 
this  Court  is  finally  asked. 

The  general  allegation  is  a  conspiracy; 
and  certainly  the  gentleman  would  not  ask 
me  to  expound  to  him  the  law  of  conspir 
acy,  nor  to  bring  from  the  library  here  the 
books  which  treat  upon  it  As  a  profes 
sional  gentleman  of  eminence,  he  is  entirely 
familiar  with  the  range  of  the  authorities  on 
that  general  subject. 

The  pleadings  proceed,  after  averring  this 
conspiracy,  (in  which  it  is  alleged  all  these 
prisoners  participated,)  to  set  forth  clearly 
and  specifically  the  part  which  it  is  believed 
and  alleged  each  one  of  them  took  in  the 
execution  of  that  conspiracy. 

The  investigation  here  has  carefully  fol 
lowed  the  line  of  allegation.  We  have 
sought,  in  every  instance,  to  show,  as  far  as 
the  testimony  would  enable  the  Government 
to  do,  that  these  parties,  in  the  execution  of 
the  conspirac}r,  performed  precisely  the  acts 
which  it  was  charged  they  had  performed. 

Now,  it  can  not  be  possible,  in  view  of 
these  allegations,  and  in  view  of  the  proofs 
which  have  been  sifted  again  and  again,  in 
the  presence  of  the  gentleman  and  those  as 
sociated  with  him,  that  he  can  have  any 
loubt,  or  can  feel  any  embarrassment  as  to 
the  precise  measure  and  manner  of  crimin 
ality  which  is  charged  upon  these  parties, 
and  upon  which  the  judgment  of  this  Court 
is  invoked.  They  are  all  alleged  to  have 
participated  in  the  general  conspiracy,  and  in 
the  execution  of  that  conspiracy,  so  far  as 
the  assassination  of  the  President  is  con 
cerned;  and  then  the  particular  parts  which 
each  one  performed  therein  afterward,  either 
in  execution  or  in  the  attempt  to  execute, 
are  set  forth.  It  is  for  the  Court  to  de 
termine  how  far  the  proof  sustains  these 
allegations;  but  it  can  not  be  that  the  gen 
tleman  is  lefc  with  any  doubt  to  embarrass 
him  as  to  the  precise  ground  on  which  the 
judgment  of  chis  Coun  is  asked  in  reference 
to  each  of  these  parties. 


246 


THE    CONSPIRACY    TRIAL. 


Then,  as  to  the  law  applicable  to  this 
case:  that  is  a  matter  of  which  the  counsel 
are  expected  to  take  notice.  We  have  no 
special  statute  to  which  we  can  point  him. 
We  have  the  great  principles  of  jurispru 
dence,  which  regulate  this  trial,  with  which 
he  is  familiar,  with  which  all  men  belonging 
to  his  profession  are  expected  and  held  to  be 
familiar.  I  do  not  suppose  we  shall  intro 
duce  a  solitary  authority  which  will  in  any 
manner  surprise  the  gentleman,  or  with  which 
he  is  not  already  perfectly  conversant.  If  I 
had  any  such,  I  should  certainly  gladly  pro 
duce  it  for  his  inspection  and  consideration 
in  advance.  But  I  decline  making  a  formal 
opening  on  the  part  of  the  Government.  It 
is  not  necessary.  It  is  not  in  accordance 
with  the  practice  of  military  courts,  and  in 
this  case  I  have  not  felt  that  I  was  at  all 
required  to  depart  from  the  usage  on  that 
subject.  This  investigation  has  been  con 
ducted  in  the  frankest  and  most  open  man 
ner,  and  the  gentleman  is  just  as  familiar  as 
the  Judge  Advocates,  who  represent  the 
Government,  are  with  all  the  facts  of  this 
case,  on  which  these  parties  are  sought  to  be 
charged.  As  to  the  legal  inferences  which 
result  from  those  facts,  he  must  be  expected 
also  to  be  advised. 

Mr.  EWIXG.  I  see  no  answer  in  the  state 
ment  of  the  learned  Judge  Advocate  to  the 
request  that  I  have  made.  I  understand 
from  the  Judge  Advocate  that  the  only 
crime  charged  against  these  parties  is  con 
spiracy.  Am  I  right? 

The  JUDGE  ADVOCATE.  A  conspiracy,  as 
alleged,  to  murder  the  President  of  the  United 
States,  and  the  members  of  the  Government 
mentioned,  and  the  execution  of  that  con 
spiracy  as  far  as  it  went,  and  the  attempt  to 
execute  it  as  far  as  alleged. 

Mr.  EVVING.  But  I  ask  what  crimes  are 
charged?  I  should  like  to  have  them  enu 
merated. 

The  JUDGE  ADVOCATE.  I  confess  that  my 
knowledge  of  language  does  not  afford  me 
any  more  distinct  designations  than  those 
which  I  have  employed  in  these  pleadings. 

General  KAUTZ.  It  seems  to  me  this  ap 
plication  should  have  been  made  when  the 
charge  and  specification  were  first  read. 

Assistant  Judge  Advocate  BURNETT.  If 
the  pleadings  were  not  sufficiently  distinct, 
that  was  the  time  when  a  request  should 
have  been  made  to  correct  them. 

Mr.  EWIXG  The  application  is  certainly 
pertinent  now,  and  it  would,  of  course,  have 
been  pertinent  at  the  beginning.  I  did  not 
see  the  charge  and  specification  until  after 
my  clients  had  pleaded;  nor  did  I  get  a  seat 
in  the  court-room  until  evidence  was  being 
introduced.  I  have  devoted  a  great  deal  of 
time  to  the  study  of  this  charge  and  specifi 
cation,  and  the  statement  which  I  have  pre 
sented  is  presented  in  entire  good  faith,  for 
the  purpose  of  learning  whether  my  clients 
are  charged  with,  and  being  tried  for,  four 


distinct  crimes— to-wit :  conspiracy,  murder, 
assault  and  battery  with  intent  to  kill,  and 
lying  in  wait — or  whether  they  are  charged 
simply  with  one  crime — conspiracy.  And 
after  the  same  deliberate  consideration  of 
the  charge  and  specification,  I  am  utterly 
unable  to  know  in  what  code  or  system  of 
laws  the  crimes  of  "traitorously  murdering," 
"traitorously  lying  in  wait,"  "traitorously 
assaulting  with  intent  to  kill,"  are  defined, 
and  their  punishments  provided.  I  should 
like  an  answer  to  the  question,  how  many 
distinct  crimes  are  the  accused  charged  with, 
and  what  are  those  crimes?  1  can  not  tell, 
from  the  charge  and  specification  with  cer 
tainty. 

Assistant  Judge  Advocate  BIXGHAM.  I 
understood  you  to  say  there  were  lour. 

Mr.  EWIXG.  It  seems  to  me  so,  but  1  should 
like  to  know  whether  I  am  right  in  that. 

The  JUDGE  ADVOCATE.  I  stated,  in  the 
brief  remarks  I  submitted,  that  I  regarded 
them  all  as  charged  with  conspiring  to  assas 
sinate  the  President  of  the  United  States, 
and  the  various  members  of  the  Government 
named  in  the  pleadings;  and  they  are  further 
charged  with  having  executed  that  conspir 
acy,  so  far  as  the  assassination  of  the  Pres 
ident  was  concerned,  and  the  attempt  to 
assassinate  the  Secretary  of  State,  and  to 
have  attempted  its  execution,  so  far  as  con 
cerns  the  lying  in  wait  and  other  matters, 
which  are  distinctly  set  forth  as  indicating 
the  individual  action  of  each  of  these  con 
spirators  in  connection  with  the  general  pro 
gramme  of  crime  as  charged,  all  being  in 
pursuance  of  the  conspiracy,  all  alleged  to 
be  in  aid  of  the  rebellion,  and  therefore 
properly  charged  as  "  traitorously  "  done,  as 
well  as  feloniously  done. 

Assistant  Judge  Advocate  BIXGHAM.  I 
have  no  hesitation,  if  the  Judge  Advocate 
Cjeneral  will  excuse  me  in  making  this  re 
mark  to  Mr.  Ewing,  not  at  all  under  the 
belief  that  by  it  I  shall  do  any  thing  more 
than  to  suggest  to  him  what  he  already 
knows,  that  the  act  of  any  one  of  the  par 
ties  to  a  conspiracy  in  its  execution,  is  the 
act  of  every  party  to  that  conspiracy;  and 
therefore  the  charge  and  specification  that 
the  President  was  murdered  in  pursuance  of 
it  by  the  hand  of  Booth,  is  a  direct  and  un 
equivocal  charge  that  he  was  murdered  by 
3very  one  of  the  parties  to  this  conspiracy, 
naming  the  defendants  by  name.  We  rely 
for  the  support  of  that  part  of  this  case  upon 
the  general  and  accepted  rules  of  the  com- 
non  law,  as  declared  in  our  own  courts,  as 
well  as  in  other  courts  where  the  common 
aw  obtains. 

Mr.  EWIXG.  I  understand  that  law  of 
:onspiracy  perfectly  well,  but  I  want  to  re- 
lew  again  my  inquiry,  whether  these  persons 
are  charged  with  the  crime  of  conspiracy 
alone,  and  that  these  acts  of  murdering,  as 
saulting,  and  lying  in  wait,  were  merely  acts 
done  in  execution  of  that  conspiracy — • 


FINDINGS   AND    SENTENCES. 


247 


Assistant  Judge  Advocate  BINGHAM.  And 
not  crimes? 

Mr.  EWING.  Or  whether  they  are  charged 
with  four  distinct  crimes  in  this  one  charge? 

Assistant  Judge  Advocate  BINGHAM.  I 
answer  the  gentleman  again,  that  where  par 
ties  are  indicted  for  a  conspiracy,  and  the 
execution  thereof,  it  is  but  one  crime  at  the 
common  law,  and  that,  upon  all  authority, 
as  many  overt  acts  in  the  execution  of  that 
conspiracy  as  they  are  guilty  of,  may  be  laid 
in  the  same  count;  and  I  rest  it  upon  the 
authority  of  Hale,  and  Foster,  and  Hawkins. 

Mr.  EWING.  It  is,  then,  I  understand,  one 
crime  with  which  they  are  charged. 

Assistant  Judge  Advocate  BINGHAM.  One 
crime  all  round,  with  various  parts  per 
formed. 

Mr.  EWING.     The  crime  of  conspiracy. 

Assistant  Judge  Advocate  BINGHAM.  It  is 
the  crime  of  murder  as  well.  It  is  not  simply 
conspiring,  but  executing  the  conspiracy 
treasonably  and  in  aid  of  the  rebellion. 

Mr.  EWING.  I  should  like  an  answer  to 
my  question,  if  it  is  to  be  given  :  How  many 
distinct  crimes  are  my  clients  charged  with 
and  being  tried  for?  I  can  not  tell. 

Assistant  Judge  Advocate  BINGHAM.  We 
have  told  you,  it  is  all  one  transaction. 

The  JUDGE  ADVOCATE.  It  may  be  my  mis 
fortune,  but  I  think  it  is  not  my  fault,  if 
the  gentleman  has  not  already  the  answer 
which  he  seeks.  I  can  not  give  him  a  better 
one. 

Mr.  EWING.  Inasmuch  as  I  get  no  answer 
intelligible  to  me  in  response  to  that  question, 
a  question  of  the  utmost  gravity,  a  question 
deeply  affecting  the  lives"  and  liberties  of 
those  whom  I  represent,  I  now  respectfully 
ask  an  answer  to  the  other  branch  of  the 
inquiry  :  By  what  code  or  system  of  laws  is 
the  crime  of  "traitorously"  murdering,  or 
"traitorously"  assaulting  with  intent  to  kill, 
or  "traitorously"  lying  in  wait,  defined? 

The  JUDGE  ADVOCATE.  I  think  the  com 
mon  law  of  war  will  reach  that  case.  This 
is  a  crime  which  has  been  committed  in  the 
midst  of  a  great  civil  war,  in  the  capital  of 
the  country,  in  the  camp  of  the  Commander- 
in-chief  of  our  armies,  and  if  the  common 
law  of  war  can  not  be  enforced  against  crim 
inals  of  that  character,  then  I  think  such  a 
code  is  in  vain  in  the  world. 

Mr.  EWING.  Do  you  base  it,  then,  only  on 
the  law  of  nations? 

The  JUDGE  ADVOCATE.  The  common  law 
of  war. 

Mr.  EWING.  Is  that  all  the  answer  to  the 
question  ? 

The  JUDGE  ADVOCATE.  It  is  the  one  which 
I  regard  as  perfectly  appropriate  to  give. 

Mr.  EWING.  I  am  as  much  in  the  dark 
now  as  to  that  as  I  was  in  reference  to  the 
other  inq.iiry. 

General  WALLACE.  I  understand  Mr.  Ewing 
to  make  an  application  that  the  Court  shall 
direct  the  Judge  Advocate  or  his  assistants 


to  open  the  case,  responding  to  the  questions 
which  he  has  propounded. 

Mr.  EWING.     That  is  my  application. 

The  Commission  overruled  the  application. 


[Omitted  from  page  138.] 

HENRY  HAWKINS  (colored.) 

For  the  Defense.— June  13. 
By  MR.  AIKEN. 

I  have  lived  at  Surrattsville  about  eleven 
years.  I  was  formerly  a  slave  of  Mrs.  Sur- 
ratt.  She  always  treated  me  kindly,  and  she 
was  very  good  to  all  her  servants.  I  remem 
ber  the  Government  horses  breaking  away 
from  Giesboro,  and  that  seven  of  them  came 
to  Mrs.  Surratt's  stable ;  they  were  there  for 
a  fortnight  or  more,  and  then  the  Government 
sent  for  them.  I  do  not  know  that  Mrs.  Sur- 
ratt  had  a  receipt  for  them,  but  I  know  that 
she  bought  hay  and  grain  to  feed  them  with. 

I  have  never  heard  Mrs.  Surratt  talk  in 
favor  of  the  South;  never  heard  any  expres 
sions,  loyal  or  disloyal,  from  her  while  I  was 
there.  She  has  often  fed  Union  soldiers  that 
passed  her  house,  and  always  gave  them  the 
best  she  had  ;  and  I  do  not  think  she  took 
any  pay  for  it;  she  took  none  that  I  know  of. 

I  do  not  know  much  about  Mrs.  Surratt's 
eyesight  being  bad,  but  I  heard  she  could  not 
see  some  time  back,  and  that  she  had  to  wear 
specs. 


COURT-ROOM,  WASHINGTON,  D.  C.,  "1 
June  29,  1865,  10  o'clock  A.  M.     J 

The  Commission  met,  with  closed  doors, 
pursuant  to  adjournment. 

All  the  members  present;  also  the  Judge 
Advocate  and  the  Assistant  Judge  Advocates. 

The  Commission  then  proceeded  to  deliber 
ate  upon  the  evidence  adduced  in  the  case 
of  each  of  the  accused. 

Pending  the  deliberation,  at  6  o'clock  P. 
M.,  the  Commission  adjourned  to  meet  again, 
with  closed  doors,  on  Friday,  June  30,  at  10 
o'clock,  A.  M. 


COUKT-ROOM,  WASHINGTON,  D.  C.,  \ 
June  30,  186.%  10  o'clock  A.  M.     j 

The  Commission  met,  with  closed  doors, 
pursuant  to  adjournment. 

All  the  members  present;  also  the  Judge 
Advocate  and  the  Assistant  Judge  Advocates. 

The  Commission  then  proceeded  to  deliber 
ate  upon  the  evidence  adduced  in  the  case 
of  each  of  the  accused. 

DAVID  E.  HEROLD. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  DAVID 
E.  HEROLD,  the  Commission  find  the  said 
accused — 

Of  the  Specification GUILTY. 

Except  "combining,  confederating  and  con- 


248 


THE    CONSPIRACY    TRIAL. 


spiring  with  Edward  Spangler;"  as  to  which 

part  thereof. NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  the  words  of  the  charge,  "  combining, 
confederating,  and  conspiring  with  Edward 
Spangler;"  as  to  which  part  of  the  charge, 

NOT  GUILTY. 

And  the  Commission  do,  therefore,  sentence 
him,  the  said  David  E.  Herold,  to  be  hanged 
by  the  neck  until  he  be  dead,  at  such  time 
and  place  as  the  President  of  the  United 
States  shall  direct;  two-thirds  of  the  Com 
mission  concurring  therein. 

GEORGE  A.  ATZERODT. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused  GEORGE 
A.  ATZERODT,  the  Commission  find  the  said 
accused — 

Of  the  Specification GUILTY. 

Except  "combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  "combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

And  the  Commission  do,  therefore,  sentence 
him,  the  said  George  A.  Atzerodt,  to  be 
hanged  by  the  neck  until  he  be  dead,  at  such 
time  and  place  as  the  President  of  the  United 
States  shall  direct;  two-thirds  of  the  Com 
mission  concurring  therein. 

LEWIS  PAYNE. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  LEWIS 
PAYNE,  the  Commission  find  the  said  ac 
cused — 

Of  the  Specification f GUILTY. 

Except  "  combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  "combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

And  the  Commission  do,  therefore,  sen 
tence  him,  the  said  Lewis  Payne,  to  be  hanged 
by  the  neck  until  he  be  dead,  at  such  time 
and  place  as  the  President  of  the  United 
States  shall  direct;  two-thirds  of  the  Com 
mission  concurring  therein. 

MRS.  MARY  E.  STJRRATT. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  MARY  E. 
SURRATT,  the  Commission  find  the  said  ac 
cused — 

Of  the  Specification GUILTY. 

Except  as  to  "  receiving,  sustaining,  harboring, 
and  concealing  Samuel  Arnold  and  Michael 


O'Laughlin,"  and  except  as  to  "  combining, 
confederating,  and  conspiring  with  Edward 
Spangler;"  of  this NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  as  to  "  combining,  confederating,  and 
conspiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

And  the  Commission  do,  therefore,  sentence 
her,  the  said  Mary  E.  Surratt,  to  be  hanged  by 
the  neck  until  she  be  dead,  at  such  time  and 
place  as  the  President  of  the  United  States 
shall  direct;  two-thirds  of  the  members  of 
the  Commission  concurring  therein. 

MICHAEL  O'LAUGHLIN. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  MICHAEL 
O'LAUGHLIN,  the  Commission  find  the  said 
accused — 

Of  the  Specification GUILTY. 

Except  the  words  thereof,  "And  in  the  fur 
ther  prosecution  of  the  conspiracy  aforesaid, 
and  of  its  murderous  and  treasonable  pur 
poses  aforesaid,  on  the  nights  of  the  13th  and 
14th  of  April,  1865,  at  Washington  City,  and 
within  the  military  department  and  military 
lines  aforesaid,  the  said  Michael  0  Laughlin 
did  there  and  then  lie  in  wait,  for  Ulysses  S. 
Grant,  then  Lieutenant-General  and  Com 
mander  of  the  armies  of  the  United  States, 
with  intent  then  and  there  to  kill  and  mur 
der  the  said  Ulysses  S.  Grant;"  of  said 
words  NOT  GUILTY;  and  except  "combining, 
confederating,  and  conspiring  with  Edward 
Spangler;"  of  this NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  "combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

The  Commission  do,  therefore,  sentence  the 
said  Michael  O'Laughlin  to  be  imprisoned 
at  hard  labor  for  life,  at  such  place  as  the 
President  shall  direct. 

EDWARD  SPANGLER. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  EDWARD 
SPANGLER,  the  Commission  find  the  said  ac 
cused — 

Of  the  Specification NOT  GUILTY. 

Except  as  to  the  words,  "  the  said  Edward 
Spangler,  on  said  14th  day  of  April,  A.  D. 
1865,  at  about  the  same  hour  of  that  day,  as 
aforesaid,  within  said  military  department 
and  the  military  lines  aforesaid,  did  aid  and 
abet  him  (meaning  John  Wilkes  Booth)  in 
making  his  escape  after  the  said  Abraham 
Lincoln  had  been  murdered  in  manner  afore 
said;"  and  of  these  words GUILTY. 

Of  the  Charge NOT  GUILTY. 

But  of  having  feloniously  and  traitorously 
aided  and  abetted  John*  Wilkes  Booth  in 
making  his  escape  after  having  killed  and 


PRESIDENT  S   APPROVAL. 


249 


murdered  Abraham  Lincoln,  President  of 
the  United  States,  he,  the  said  Edward 
Spangler,  at  the  time  of  aiding  and  abetting 
as  aforesaid,  well  knowing  that  the  said 
Abraham  Lincoln,  President  as  aforesaid, 
had  been  murdered  by  the  said  John  Wilkes 

Booth,  as  aforesaid GUILTY. 

The  Commission  do,  therefore,  sentence  the 
said  Edward  Spangler  to  be  imprisoned  at 
hard  labor  for  six  years,  at  such  place  as  the 
President  shall  direct. 

SAMUEL  ARNOLD. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  SAMUEL 
ARNOLD,  the  Commission  find  the  said  ac 
cused — 

Of  the  Specification GUILTY. 

Except  "  combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  "  combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this 

NOT  GUILTY. 

The  Commission  do,  therefore,  sentence  the 
said  Samuel  Arnold  to  imprisonment  at  hard 
labor  for  life,  at  such  place  as  the  President 
shall  direct. 

SAMUEL  A.  MUDD. 

After  mature  consideration  of  the  evidence 
adduced  in  the  case  of  the  accused,  SAMUEL 
A.  MUDD,  the  Commission  find  the  said  ac 
cused — 

Of  the  Specification GUILTY. 

Except  "combining,  confederating,  and  con 
spiring  with  Edward  Spangler;"  of  this  NOT 
GUILTY;  and  excepting  "receiving,  entertain 
ing,  and  harboring  and  concealing  said  Lewis 
Payne,  John  H.  Surratt,  Michael  O'Laugh- 
lin,  George  A.  Atzerodt,  Mary  E.  Surratt,  and 
Samuel  Arnold;"  of  this NOT  GUILTY. 

Of  the  Charge GUILTY. 

Except  "combining,  confederating  and  con 
spiring  with  Edward  Spangler,"  of  this 

NOT  GUILTY. 

The  Commission  do,  therefore,  sentence  the 
said  Samuel  A.  Mudd  to  be  imprisoned  at 
hard  labor  for  life,  at  such  place  as  the  Pres 
ident  shall  direct. 


WAR  DKPAKTMENT,  AD.TUTANT-GKNERAT/S  OFFICE,  \ 
,  WASHINGTON,  July  5,  I8('w.     J 

To    Major- General    W.    S.    Hancock,     United 
States    Volunteers,    commanding    the   Middle 
Military  Division,  Washington,  D.   C. : 
WHEREAS,  By  the  Military  Commission  ap 
pointed   in  paragraph  4,  Special  Orders  No. 
211,  dated  War   Department,   Adjutant-Gen- 
e^al's  Offce,  Wa«hington.  May  6,  1865,  and 
of  which  Major-General  David  Hunter,  United 
States  Volunteers,  was  President,  the  follow 


ing  persons  were  tried,  and,  after  mature  con 
sideration  of  evidence  adduced  in  their  cases, 
were  found  and  sentenced  as  hereinafter 
stated,  as  follows. 

[Here  follow  the  findings  and  sentences  in  the  case  of 
David  K.  Refold,  George  A.  Atzerodt,  Lewis  Payne,  and 
Mary  E.  Surratt.  1 

And  whereas,  the  President  of  the  United 
States  has  approved  the  foregoing  sentences, 
in  the  following  order,  to  wit: 

EXECUTIVE  MANSION,  July  f>,  1865. 

The  foregoing  sentences  in  the  cases  of 
David  E.  Herold,  G.  A.  Atzerodt,  Lewis 
Payne,  and  Mary  E.  Surratt,  are  hereby  ap 
proved;  and  it  is  ordered,  that  the  sentences 
in  the  cases  of  David  E.  Herold,  G.  A.  Atze 
rodt,  Lewis  Payne,  and  Mary  E.  Surratt,  be 
carried  into  execution  by  the  proper  military 
authority,  under  the  direction  of  the  Secre 
tary  of  War,  on  the  7th  day  of  July,  1865, 
between  the  hours  of  10  o'clock,  A.  M.,  and 
2  o'clock,  P.  M..  of  that  day. 

(Signed)          ANDREW  JOHNSON, 

President 

Therefore,  you  are  hereby  commanded  to 
cause  the  foregoing  sentences  in  the  cases  of 
David  E.  Herold,  G.  A.  Atzerodt,  Lewis 
Payne,  and  Mary  E.  Surratt,  to  be  duly  ex 
ecuted,  in  accordance  with  the  President's 
order. 

By  command  of  the  President  of  the 
United  States. 

E.  D.  TOWNSEND, 
Assistant  Adjutant- General. 


PRESIDENT  S   APPROVAL    OF    THE    FINDINGS    AND 

SENTENCES. 

EXECUTIVE  MANSION,  July  5, 1865. 
The  foregoing  sentences  in  the  cases  of 
David  E.  Herold,  G.  A.  Atzerodt,  Lewis 
Payne,  Michael  O'Laughlin,  Edward  Span 
gler,  Samuel  Arnold,  Mary  E.  Surratt,  and 
Samuel  A.  Mudd,  are  hereby  approved,  and 
it  is  ordered  that  the  sentences  of  said  David 
E.  Herold,  G.  A.  Atzerodt,  Lewis  Payne,  and 
Mary  E.  Surratt  be  carried  into  execution 
by  the  proper  military  authority,  under  the 
direction  of  the  Secretary  of  War,  on  the  7th 
day  of  July,  1865,  between  the  hours  of  10 
o'clock,  A.  M,  and  2  o'clock.  P.  M.,  of  that 
day.  It  was  further  ordered,  that  the  prison 
ers,  Samuel  Arnold,  Samuel  A.  Mudd,  Ed 
ward  Spangler,  and  Michael  O'Laughlin  be 
confined  at  hard  labor  in  the  Penitentiary 
at  Albany,  New  York,  during  the  period 
designated  in  their  respective  sentences. 
ANDREW  JOHNSON, 

President. 


EXECUTIVE  MANSION,  July  15,  1305. 
The  executive  order,  dated  July  5,  1865, 
approving  the  sentences  in  the  cases  of 
Samuel  Arnold,  Samuel  A.  Mudd.  Edward 
Spangler,  and  Michael  O'Laughlin  is  nereoy 
modified,  so  as  to  direct  that  the  said  Arnold, 


250 


THE    CONSPIRACY   TRIAL. 


Mudd,  Spangler,  and  O'Laughlin,  be  confined 
at  hard  labor  in  the  military  prison  at  Dry 
Tortugas,  Florida,  during  the  period  desig 
nated  in  their  respective  sentences. 

The  Adjutant-General  of   the  army  is  di 


rected  to  issue  orders  for  the  said  prisoners 
to  be  transported  to  the  Dry  Tortugas,  and 
to  be  confined  there  accordingly. 

ANDREW  JOHNSON, 

President, 


APPLICATION  FOR  WRIT  OF  HABEAS  CORPUS  IN  BEHALF  OF 

MARY  E.  SURRATT. 


WASHINGTON,  D.  C.,  July  7,  1865. 

To  the  Hon.  Andreiv  Wylie,  one  of  the  Justices  of 
the  Supreme  Court  of  the  District  of  Columbia: 
The  petition  of  Mary  E.  Surratt,  by  her  coun 
sel,  F.  A.  Aiken  and  John  W.  Clampitt,  most 
respectfully  represents  unto  your  Honor,  that,  on 
or  about  the  17th  day  of  April,  A.  D.  1865,  your 
petitioner  was  arrested  by  the  military  authori 
ties  of  the  United  States,  under  the  charge  of 
complicity  with  the  murder  of  Abraham  Lin 
coln,  late  President  of  the  United  States,  and 
has  ever  since  that  time  been  and  is  now  con 
fined  on  said  charge,  under  and  by  virtue  of  the 
said  militai-y  power  of  the  United  States,  and  is 
in  the  special  custody  of  Major- General  W.  S. 
Hancock,  commanding  Middle  Military  Divi 
sion;  that  since  her  said  arrest  your  petitioner 
has  been  tried,  against  her  solemn  protest,  by  a 
Military  Commission,  unlawfully  and  without 
warrant,  convened  by  the  Secretary  of  War,  as 
•will  appear  from  paragraph  9,  Special  Orders, 
No.  211,  dated  War  Department,  Adjutant-Gen 
eral's  Office,  Washington,  May  the  Oth,  1805, 
and  by  said  Commission,  notwithstanding  her 
formal  plea  to  the  jurisdiction  of  the  said  Com 
mission,  is  now  unlawfully  and  unjustifiably 
detained  in  custody  and  sentenced  to  be  hanged 
on  to-morrow,  July  7th,  1865,  between  the  hours 
of  10  A.  M.  and  2  P.  M.;  your  petitioner  shows 
unto  vour  Honor  that  at  the  time  of  the  com 
mission  of  the  said  offense  she  was  a  private 
citizen  of  the  United  States,  and  in  no  manner 
connected  with  the  military  authority  of  the 
same,  and  that  said  offense  was  committed 
within  the  District  of  Columbia,  said  District 
being  at  the  time  within  the  lines  of  the  armies 
of  the  United  States,  and  not  enemy's  territory, 
or  under  the  control  of  a  military  commander 
for  the  trial  of  civil  causes.  But,  on  the  con 
trary,  your  petitioner  alleges  that  the  said  crime 
was  an  offense  simply  against  the  peace  of  the 
United  States,  properly  and  solely  cognizable 
under  the  Constitution  and  laws  of  the  United 
States,  by  the  Criminal  Court  of  this  District, 
and  which  said  court  was  and  is  now  open  for 
the  trial  of  such  crimes  and  offenses.  Where 
fore,  inasmuch  as  the  said  crime  was  only  an 
offense  against  the  peace  of  the  United  States, 
and  not  an  act  of  war;  inasmuch  as  your  peti 
tioner  was  a  private  citizen  of  the  same,  and 
not  subject  to  military  jurisdiction,  or  in  any 
wise  amenable  to  military  law;  inasmuch  as 
said  District  was  the  peaceful  territory  of  the 
United  States,  and  that  all  crimes  committed 
within  such  territory  are,  under  the  Constitu 
tion  and  laws  of  the  United  States,  to  be  tried 
only  before  its  criminal  tribunals,  with  the  right 
of  public  trial  by  jury;  inasmuch  as  said  Com 


mission  was  a  Military  Commission,  organized 
and  governed  by  the  laws  of  military  court- 
martial,  and  unlawfully  convened  without  war 
rant  or  authority,  and  when  she  had  not  the 
right  of  public  trial  by  jury  as  guaranteed  to 
her  by  the  Constitution  and  laws  of  the  United 
States,  that,  therefore,  her  detention  and  sen 
tence  are  so  without  warrant  against  positive 
law  and  unjustifiable:  wherefore  she  prays  your 
Honor  to  grant  unto  her  the  United  States'  most 
gracious  writ  of  habeas  corpus,  commanding  the 
said  Major-General  W.  S.  Hancock  to  produce 
before  your  Honor  the  body  of  your  said  peti 
tioner,  with  the  cause  and  day  of  her  said  de 
tention,  to  abide,  etc.,  and  she  will  ever  pray. 
MARY  E.  SURRATT. 
By  FREDERICK  A.  AIKEN,  JOHN  W.  CLAMPITT. 

INDORSED. — Lot  the  writ  issue  as  pr;vyc;l,  returnable  be 
fore  the  Criminal  Court  of  the  District  of  Columbia,  now 
sittinir,  at  the  hour  of  ID  o'clock  A.  M.,  this  7th  day  of 
July  ISfiS  ANDREW  WYLIK, 

A  Juxtk-H  of  the  Supreme  Court  of  (he  District  of  Columbia. 

JULY  7th,  LSi'>3. 

At  half-past  11  o'clock  on  the  morning  of  the 
7th  of  July,  Major-General  Hancock,  accompa 
nied  by  Attorney-General  Speed,  appeared  be 
fore  Judge  Wylie  in  obedience  to  the  writ,  and 
made  the  following  return: 

IlEAD-Ql.'AUTEUS  MIDDLE  MILITARY  DIVISION,  ~) 

WASHINGTON,  L).  (,'.,  July  7,  }><>:>.     j 
To  lion.  Andrew  Wylic,  Justice   of  the   Supreme 

Court  of  the  District  of  Columbia  : 

I  hereby  acknowledge  the  service  of  the  writ 
hereto  attached  and  return  the  same,  and  respect 
fully  say  that  the  body  of  Mary  E.  Surratt  is  in 
my  possession,  under  and  ..by  virtue  of  an  order 
of  Andrew  Johnson,  President  of  the  United 
States  and  Commander-in-chief  of  the  Army  and 
Navy,  for  the  purposes  in  said  order  expressed,  a 
copy  of  which  is  hereto  attached  and  made  part 
of  this  return  ;  and  that  I  do  not  produce  said 
body  by  reason  of  the  order  of  the  President  of 
the  United  States,  indorsed  upon  said  writ,  to 
which  reference  is  hereby  respectfully  made, 
dated  July  7th,  1865.  W.  S.  HANCOCK, 

Maj.-G-en.  U.  8.  Vols.,  Commanding  Middle  Div. 
THK  PRESIDENT'S  INDORSEMENT. 

EXECUTIVE  OFFICE,  July  7,  18tv>,  10  A.  M. 
To  Major-  General  W.  8.  Hancock,  Commander,  etc.: 

I,  Andrew  Johnson,  President  of  the  United 
States,  do  hereby  declare  that  the  writ  of  habeas 
corpus  has  been  heretofore  suspended  in  such 
cases  as  this,  and  I  do  hereby  especially  suspend 
this  writ,  and  direct  th;u  you  proceed  to  execute 
the  order  heretofore  giv.-n  upon  the  judgment  of 
the  Military  Commission,  and  you  will  give  this 
order  in  return  to  the  writ. 

ANDREW  JOHNSON,  President. 

The  Court  ruled  that  it  yielded  to  the  suspen 
sion  of  the  writ  of  habeas  corpus  by  the  President 
of  the  United  States. 

The  sentences  were  duly  carried  into  execution. 


JURISDICTION  OF  THE  MILITARY  COMMISSION, 


REVERDY   JOHNSON, 

Of  Counsel  for  Mrs.  Surratt. 


Mr.  President  and  Gentlemen  of  the  Commission: 


Has  the  Commission  jurisdiction  of  the  cases 
before  it,  is  the  question  which  I  propose  to  dis 
cuss.  That  question,  iu  all  courts,  civil,  crim 
inal,  and  military,  must  be  considered  and  an 
swered  affirmatively  before  judgment  can  be 
pronounced.  And  it  must  be  answered  cor 
rectly,  or  the  judgment  pronounced  is  void. 
Ever  an  interesting  and  vital  inquiry,  it  is  of 
engrossing  interest  and  of  awful  importance 
when  error  may  lead  to  the  unauthorized  taking 
of  human  life.  In  such  a  case,  the  court  called 
upon  to  render,  and  the  officer  who  is  to  approve 
its  judgment  and  have  it  executed,  have  a  con 
cern  peculiar  to  themselves.  As  to  each,  a  re 
sponsibility  is  involved  which,  however  consci 
entiously  and  firmly  met,  is  calculated  and  can 
not  fail  to  awaken  great  solicitude  and  induce 
the  most  mature  consideration.  The  nature  of 
the  duty  is  such  that  even  honest  error  affords 
no  impunity.  The  legal  personal  consequences, 
even  in  a  case  of  honest,  mistaken  judgment, 
can  not  be  avoided.  That  this  is  no  exaggera 
tion,  the  Commission  will,  I  think,  be  satisfied 
before  1  shall  have  concluded.  I  refer  to  it  now, 
and  shall  again,  with  no  view  to  shake  your 
firmness.  Such  an  attempt  would  be  alike  dis 
courteous  and  unprofitable.  Every  member  com 
prising  the  Commission  will,  I  am  sure,  meet  all 
the  responsibility  that  belongs  to  it  as  becomes 
gentlemen  and  soldiers.  I  therefore  repeat  that 
ray  sole  object  in  adverting  to  it  is  to  obtain  a 
well  considered  and  matured  judgment.  So  far 
the  question  of  jurisdiction  has  not  been  dis 
cussed.  The  pleas  which  specially  present  it, 
as  soon  as  filed,  were  overruled.  But  that  will 
not,  because  properly  it  should  not,  prevent  your 
considering  it  with  the  deliberation  that  its 
grave  nature  demands.  And  it  is  for  you  to 
decide  it,  and  at  this  time  for  you  alone.  The  com 
mission  you  are  acting  under  of  itself  does  not 
and  could  not  decide  it.  If  unauthorized  it  is  a 
mere  nullity — the  usurpation  of  a  power  not 
vested  in  the  Executive,  and  conferring  no  au 
thority  whatever  upon  you.  To  hold  otherwise 
would  be  to  make  the  Executive  the  exclusive 
and  conclusive  judge  of  its  own  powers,  and 
that  would  be  to  make  that  department  omnipo 
tent.  The  powers  of  the  President  under  the 
Constitution  are  great,  and  amply  sufficient  to 


give  all  needed  efficiency  to  the  office.  The  con 
vention  that  formed  the  Constitution,  and  the 
people  who  adopted  it,  considered  those  powers 
sufficient,  and  granted  no  others.  In  the  minds 
of  both  (and  subsequent  history  has  served  to 
strengthen  the  impression)  danger  to  liberty  was 
no  more  to  be  dreaded  from  the  Executive  than 
from  any  other  department  of  the  Government. 
So  far,  therefore,  from  meaning  to  extend  its 
powers  beyond  what  was  deemed  necessary  to 
the  wholesome  operation  of  the  Government, 
they  were  studious  to  place  them  beyond  the 
reach  of  abuse.  With  this  view,  before  entering 
"on  the  execution  of  his  office,"  the  President  is 
required  to  take  an  oath  "faithfully''  to  dis 
charge  its  duties,  and  to  the  best  of  his  "  ability 
preserve,  protect,  and  defend  the  Constitution  of 
the  United  States."  He  is  also  liable  to  "be  re 
moved  from  office  on  impeachment  for  and  con 
viction  of  treason,  bribery,  or  other  high  crimes 
and  misdemeanors."  If  he  violates  the  Consti 
tution  ;  if  he  fails  to  preserve  it ;  and,  above  all, 
if  he  usurps  powers  not  granted,  he  is  false  to 
his  official  oath,  and  liable  to  be  indicted  and 
convicted,  and  to  be  impeached.  For  such  an 
offense  his  removal  from  office  is  the  necessary 
consequence.  In  such  a  contingency,  "  he  shall 
be  removed"  is  the  command  of  the  Constitu 
tion.  What  stronger  evidence  could  there  be 
that  his  powers,  all  of  them,  in  peace  and  in 
war,  are  only  such  as  the  Constitution  confers  ? 
But  if  this  was  not  evident  from  the  instrument 
itself,  the  character  of  the  men  who  composed 
the  Convention,  and  the  spirit  of  the  American 
people  at  that  period,  would  prove  it.  Hatred  of 
a  monarchy,  made  the  more  intense  by  the  con 
duct  of  the  monarch  from  whose  government 
they  had  recently  separated,  and  a  deep-seated 
love  of  constitutional  liberty,  made  the  more 
keen  and  active  by  the  sacrifices  which  had  il 
lustrated  their  revolutionary  career,  constituted 
them  a  people  who  could  never  be  induced  to 
delegate  any  executive  authority  not  so  carefully 
restricted  and  guarded  as  to  render  its  abuse  or 
usurpation  almost  impossible.  If  these  observa 
tions  are  well  founded — and  I  suppose  they  will 
not  be  denied — it  follows  that  an  executive  act 
beyond  executive  authority  can  furnish  no  de 
fense  against  the  legal  consequences  of  what  is 
done  under  it.  I  have  said  that  the  question  of 
jurisdiction  is  ever  open.  It  may  be  raised  by 

2-51 


252 


ARGUMENT    OF    REVERDY   JOHNSON. 


counsel  at  any  stage  of  the  trial,  and  if  it  is  not,  j  generalissimo  of  the  whole  kingdom,  h:is  this 
the  Court  not  only  may,  but  is  bound  to  notice  j  sole  power,  though  Parliament  has  frequently 
it.  Unless  jurisdiction  then  exists,  the  authority  |  interposed  and  regulated  for  itself.  But  with 
to  try  does  not  exist,  and  whatever  is  done  is  j  us,  it  was  thought  safest  to  give  the  entire  power 
" coram  non  judice,"  and  utterly  void.  This  doc- j  to  Congress,  "since  otherwise  summary  and 
trine  is  as  applicable  to  military  as  to  other  severe  punishments  might  be  inflicted  at  the 
courts.  mere  will  of  the  Executive/'  3  Story' i  t'vui.. 


O'Brien  tells  us  that  the  question  may  be 
raised  by  demurrer  if  the  facts  charged  do  not 
constitute  an  offense,  or  if  they  do,  not  an  of 
fense  cognizable  by  a  military  court,  or  that  it 
may  be  raised  by  a  special  plea,  or  under  the 
general  one  of  not  guilty.  O'Brien,  248. 

Dellart  says:  The  court  "is  the  judge  of  its 
own  competency  at  any  stage  of  its  proceedings, 
and  is  bound  to  notice  questions  of  jurisdiction 
whenever  raised."  DeHart  III. 

The  question  then  being  always  open,  and  its 
proper  decision  essential  to  the  validity  of  its 
judgment,  the  Commission  must  decide  before 
pronouncing  such  judgment  whether  it  has  juris 
diction  over  these  parties  and  the  crimes  im 
puted  to  them.  That  a  tribunal  like  this  has  no 
jurisdiction  over  other  than  military  offenses,  is 
believed  to  be  self-evident.  That  offenses  denned 
and  punished  by  the  civil  law,  and  whose  trial 
is  provided  for  by  the  same  law,  are  not  the  sub 
jects  of  military  jurisdiction,  is  of  course  true. 
A  military,  as  contradistinguished  from  a  civil 
offense,  must  therefore  be  made  to  appear,  and 
when  it  is,  it  must  also  appear  that  the  military 
law  provides  for  its  trial  and  punishment  by  a 
military  tribunal.  If  that  law  does  not  furnish 
a  mode  of  trial,  or  affix  a  punishment,  the  case 
is  unprovided  for,  and,  as  far  as  the  military 
power  is  concerned,  is  to  go  unpunished.  But 
as  either  the  civil,  common,  or  statute  law  em 
braces  every  species  of  offense  that  the  United 
States,  or  the  States  have  deemed  it  necessary  to 
punish,  in  all  such  cases  the  civil  courts  are 
clothed  with  every  necessary  jurisdiction.  In  a 
military  court,  if  the  charge  does  not  state  a 
"crime  provided  for  generally  or  specifically  by 
any  of  the  articles  of  war,;'  the  prisoner  must 
be  discharged.  O1  Brien,  p.  235.  Nor  is  it  suffi 
cient  that  the  charge  is  of  a  crime  known  to  the 
military  law.  The  offender,  when  he  commits  it, 
must  be  subject  to  such  law,  or  he  is  not  subject 
to  military  jurisdiction.  The  general  law  has 
"  supreme  and  undisputed  jurisdiction  over  all. 
The  military  law  puts  forth  no  such  pretensions ; 
it  aims  solely  to  enforce  on  the  soldier  the  addi 
tional  duties  he  has  assumed.  It  constitutes  tri 
bunals  for  the  trial  of  breaches  of  military  duty 
only."  O'Brien,  26,  27.  "The  one  code  (the 
civil)  embraces  all  citizens,  whether  soldiers  or 
not;  the  other  (the  military)  has  no  jurisdiction 
over  any  citizen  as  such."  Ibid. 

The  provisions  of  the  Constitution  clearly 
maintain  the  same  doctrine.  The  Executive  has 
no  authority  "to  declare  war,  to  raise  and  sup 
port  armies,  to  provide  and  maintain  a  navy,' 
or  to  make  "rules  for  the  government  and  regu 
lation"  of  either  force, 
clusively  in  Congress. 


These  powers  are  ex- 
An  army  can  not  be 


raised  or  have  law  for  its  government  and  regu 
lation  except  as  Congress  shall  provide.  This 
power  of  Congress  to  govern  and  regulate  the 
army  and  navy,  was  granted  by  the  convention 
without  objection.  In  England,  the  King,  as  the 


sect.  1192.  No  member  of  the  Convention,  or 
any  commentator  on  the  Constitution  sinei:,  has 
intimated  that  even  this  Congressional  power 
could  be  applied  to  citizens  not  belonging  to  tho 
army  or  navy.  In  respect,  too,  to  the  latter 
class,  the  power  was  conferred  exclusively  on 
Congress  to  prevent  that  class  being  made  the 
object  of  abuse  by  the  Executive — to  guard  them 
especially  from  "summary  and  severe  punish 
ments  '  inflicted  by  mere  Executive  will.  The 
existence  of  such  a  power  being  vital  to  disci 
pline,  it  was  necessary  to  pi-ovide  for  it.  But  no 
member  suggested  that  it  should  be  or  could  be 
made  to  apply  to  citizens  not  in  the  military 
service,  or  be  given  to  any  other  department,  in 
whole  or  in  part,  than  Congress.  Citizens  not 
belonging  to  the  army  or  navy  were  not  made 
liable  to  military  law,  or  under  any  circum 
stances  to  be  deprived  of  any  of  the  guaranties 
of  personal  liberty  provided  by  the  Constitution. 
Independent  of  the  consideration  that  the  very 
nature  of  the  Government  is  inconsistent  with 
such  a  pretension,  the  power  is  conferred  upon 
Congress  in  terms  that  exclude  all  who  do  not 
belong  to  "  the  land  and  naval  forces."  It  is  a 
rule  of  interpretation  coeval  with  its  existence, 
that  the  Government,  in  no  department  of  it, 
possesses  poAvers  not  granted  by  express  delega 
tion  or  necessarily  to  be  implied  from  those  that 
are  granted.  This  would  be  the  rule  incident  to 
the  very  nature  of  the  Constitution  ,  but  to  place 
it  beyond  doubt,  and  to  make  it  an  imperative 
rule,  the  10th  amendment  declares  that  "the 
powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectivoly,  or 
to  the  people."  The  power  given  to  Congress, 
"is  to  make  rules  for  the  government  and  regu 
lation  of  the  land  and  naval  forces."  No  arti 
fice  of  ingenuity  can  make  these  words  include 
those  who  do  not  belong  to  the  army  and  navy ; 
and  they  are  therefore  to  be  construed  to  exclude 
all  others,  as  if  negative  words  to  that  effect  had 
been  added.  And  this  is  not  only  the  obvious 
meaning  of  the  terms,  considered  by  themselves, 
but  is  demonstrable  from  other  provisions  of  the 
Constitution.  So  jealous  were  our  ancestors  of 
ungranted  power,  and  so  vigilant  to  protect  tho 
citizen  against,  it,  that  they  were  unwilling  to 
leave  him  to  the  safeguards  which  a  proper 
construction  of  the  Constitution,  as  originally 


idopted,  furnished, 
nothinc:    should    be 


In  this  they  resolved  that 
left   in    doubt.      They    de 


termined,  therefore,  not  only  to  guard  him  against 
executive  and  judicial,  but  against  Congressional 
abuse.  With  that  view,  they  adopted  the  fifth 
constitutional  amendment,  which  declares  that 
"  no  person  shall  be  held  to  answer  for  a  capital 
or  othei'wise  infamous  crime,  unless  on  a.  pre 
sentment  or  indictment  of  a  grand  jury,  EXCEPT 
in  cares  arising  in  the  land  or  naval  forces,  or  in 
the  militia  when  in  active  service  in  time  uj  war  or 
public  danger"  This  exception  is  designed  to 


THE    CONSPIRACY   TRIAL. 


253 


leave  in  force,  not  to  enlarge  the  power  vested 
in  Congress  by  the  original  Constitution,  "to 
make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces."  "The  land  or 
naval  forces"  are  the  terms  used  in  both,  have 
the  same  meaning,  and  until  lately,  have  been 
supposed  by  every  commentator  and  judge,  to 
exclude  from  military  jurisdiction  offenses  com 
mitted  by  citizens  not  belonging  to  such  forces. 
Kent,  in  a  note  to  his  1  Corns.,  p.  341,  states, 
and  with  accuracy,  that  "military  and  naval 
crimes,  and  offenses  committed  while  the  party 
is  attached  to  and  under  the  immediate  author 
ity  of  the  army  and  navy  of  the  United  States 
and  in  actual  service,  are  not  cognizable  under 
the  common  law  jurisdiction  of  the  civil  courts 
of  the  United  States."  According  to  this  great 
authority  every  other  class  of  persons  and  every 
other  species  of  offense,  are  within  the  juris 
diction  of  the  civil  courts,  and  entitled  to  the 
protection  of  the  proceeding  by  presentment 
or  indictment,  and  a  public  trial  in  such  a 
court.  If  the  constitutional  amendment  has 
not  that,  effect,  if  it  does  not  secure  that  pro 
tection  to  all  who  do  not  belong  to  the  army 
or  navy,  then  the  provisions  in  the  sixth 
amendment  are  equally  inoperative.  They, 
"in  all  criminal  prosecutions,"  give  the  ac 
cused  a  right  to  a  speedy  and  public  trial;  a 
right  to  be  informed  of  the  nature  and  cause 
of  the  accusation,  to  be  confronted  with  the 
witnesses  against  him,  to  compulsory  process 
for  his  witnesses,  and  the  assistance  of  counsel. 
The  exception  in  the  5th  amendment  of  cases 
arising  in  the  land  or  naval  forces  applies  by 
necessary  implication,  at  least  in  part,  to  this. 
To  construe  this  as  not  containing  the  ex 
ception  would  defeat  the  purpose  of  the  ex 
ception';  for  the  provisions  of  the  6th  amend 
ment,  unless  they  are  subject  to  the  exceptions 
of  the  5th,  would  be  inconsistent  with  the  5th. 
The  Gth  is  therefore  to  be  construed  as  if  it  in 
words  contained  the  exception.  It  is  submitted 
that  this  is  evident.  The  consequence  is,  that 
if  the  exception  can  be  made  to  include  those 
who,  in  the  language  of  Kent,  are  not,  when 
the  offense  was  committed,  "attached  to  and 
under  the  immediate  authority  of  the  army  or 
navy,  and  in  actual  service,"  the  securities 
designed  for  other  citizens  by  the  Gth  article 
are  wholly  nugatory.  If  a  military  commis 
sion,  created  by  the  mere  authority  of  the 
President,  can  deprive  a  citizen  of  the  benefit 
of  the  guaranties  secured  by  the  5th  amend 
ment,  it  can  deprive  him  of  those  secured  by 
the  Gth.  It  may  deny  him  the  right  to  a  "  speedy 
and  public  trial,"  information  "of  the  nature 
and  cause  of  the  accusation,"  of  the  right  "  to 
be  confronted  with  the  witnesses  against  him," 
of  compulsory  process  for  his  witnesses,"  and 
of  "  the  assistance  of  counsel  for  his  defense." 
That  this  can  be  done  no  one  has  as  yet  main 
tained  ;  no  opinion,  however  latitudinarian,  of 
executive  power,  of  the  effect  of  public  neces 
sity,  in  war  or  in  peace,  to  enlarge  its  sphere, 
and  authorize  a  disregard  of  its  limitations; 
no  one,  however  convinced  he  may  be  of  the 
policy  of  protecting  accusing  witnesses  from  a 
public  examination,  under  the  idea  that  their 
testimony  can  not  otherwise  be  obtained,  and 


j  that  crime  may  consequently  go  unpunished, 
has  to  this  time  been  found  to  go  to  that  extent. 
Certainly,  no  writer  has  ever  maintained  such 
a  doctrine.  Argument  to  refute  it,  is  unneces- 
j  sary.  It  refutes  itself.  For,  if  sound,  the  Gth 
!  amendment,  which  our  fathers  thought  so  vital 
j  to  individual  liberty  when  assailed  by  govern- 
|  mental  prosecution,  is  but  a  dead  letter,  totally 
'  inefficient  for  its  purpose  whenever  the  Govern 
ment  shall  deem  it  proper  to  try  a  citizen  by  a 
military  commission.  Against  such  a  doctrine 
the  very  instincts  of  freemen  revolt.  It  has  no 
foundation  but  in  the  principle  of  unrestrained, 
tyrannic  power,  and  passive  obedience.  If  it 
be  well  founded,  then  are  we  indeed  a  nation 
of  slaves,  and  not  of  freemen.  If  the  Executive 
can  legally  decide  whether  a  citizen  is  to  enjoy 
the  guaranties  of  liberty  afforded  by  the  Con 
stitution,  what  are  we  but  slaves?  If  the  Presi 
dent,  or  any  of  his  subordinates,  upon  any  pre 
tence  whatever,  can  deprive  a  citizen  of  such 
guaranties,  liberty  with  us,  however  loved,  is 
not  enjoyed.  But  the  Constitution  is  not  so 
fatally  defective.  It  is  subject  to  no  such  re 
proach.  In  war  and  in  peace,  it  is  equally  po 
tential  for  the  promotion  of  the  general  welfare, 
and  as  involved  in  and  necessary  to  such  wel 
fare,  for  the  protection  of  the  individual  citizen. 
Certainly,  until  this  rebellion,  this  has  been  the 
proud  and  cherished  conviction  of  the  country. 
And  it  is  to  this  conviction  and  the  assurance 
that  it  could  never  be  shaken  that  our  past 
prosperity  is  to  be  referred.  God  forbid  that 
mere  power,  dependent  for  its  exercise  on  Ex 
ecutive  will  (a  condition  destructive  of  political 
happiness),  shall  ever  be  substituted  in  its 
place.  Should  that  unfortunately  ever  occur,  un 
less  it  was  soon  corrected  by  the  authority  of  the 
people,  the  objects  of  our  Revolutionary-  strug 
gle,  the  sacrifices  of  our  ancestors,  and  the  de 
sign  of  the  Constitution  will  all  have  been  in 
vain. 

I  proceed  now  to  examine  with  somewhat  of 
particularity  the  grounds  on  which  I  am  in 
formed  your  jurisdiction  is  maintained. 

1st.  That  it  is  an  incident  of  the  war  power. 

I.  That  power,  whatever  be  its  extent,  is  ex 
clusively  in  Congress.  War  can  only  be  de 
clared  by  that  body.  With  its  origin  the 
President  has  no  concern  whatever.  Armies, 
when  necessary,  can  only  be  raised  by  the 
same  body.  Not  a  soldier,  without  its  author 
ity,  can  be  brought  into  service  by  the  Execu 
tive.  He  is  as  impotent  to  that  end  as  a  pri 
vate  citizen.  And  armies,  too,  when  raised 
by  Congressional  authority,  can  only  be  gov 
erned  and  regulated  by  "rules"  prescribed 
by  the  same  authority  The  Executive  pos 
sesses  no  power  over  the  soldier  except  such 
as  Congress  may,  by  legislation,  confer  upon 
him.  If,  then,  it  was  true  that  the  creation  of 
a  military  commission  like  the  present  is  in 
cidental  to  the  war  power,  it  must  be  author 
ized  by  the  department  to  which  that  power 
belongs,  and  not  by  the  Executive,  to  whom 
no  portion  of  it  belongs.  And  if  it  be  said  to 
be  involved  in  the  power  "to  make  rules  for 
the  government  and  regulation  of  the  land 
and  naval  forces,"  the  result  is  the  same.  It 


254 


ARGUMENT    OF    REVERDY   JOHNSON. 


must  be  done  by  Congress,  to  whom  tliat  power 
also  exclusively  belongs,  and  not  by  the  Ex 
ecutive.  Has  Congress,  then,  under  either 
power,  authorized  such  a  commission  as  this 
to  try  such  cases  as  these?  It  is  confidently 
asserted  that  it  has  not.  If  it  has,  let  the 
statute  be  produced.  It  is  certainly  not  done 
by  that  of  the  10th  of  April,  1806,  "  establish 
ing  articles  for  the  government  of  the  armies 
of  the  United  States."  No  military  courts  are 
there  mentioned  or  provided  for  but  courts- 
martial  and  courts  of  inquiry.  And  their 
mode  of  appointment  and  organization,  and 
of  proceeding,  and  the  authority  vested  in 
them  are  also  prescribed.  Military  commis 
sions  are  not  only  not  authorized,  but  are  not 
even  alluded  to.  And,  consequently,  the  par 
ties,  whoever  these  may  be,  who,  under  that 
act,  can  be  tried  by  courts-martial  or  courts 
of  inquiry,  are  not  made  subject  to  trial  by  a 
military  commission.  Nor  is  such  a  tribunal 
mentioned  in  any  prior  statute,  or  in  any  sub 
sequent  one,  until  those  of  the  17th  of  July, 
1862,  and  of  the  3d  of  March,  1863.  In  the 
5th  section  of  the  first,  the  records  of  ."mili 
tary  commissions  are  to  be  returned  for  re 
vision  to  the  Jurige  Advocate  General,"  whose 


or  even  alluded  to,  by  any  writer  on  military 
law  in  England  or  the  United  States,  or  in 
any  legislation  of  either  country.  It  has  its 
origin  in  the  rebellion,  and  like  the  danger 
ous  heresy  of  secession,  out  of  which  that 
sprung,  nothing  is  more  certain  in  my  opin 
ion  than  that,  however  pure  the  motives  of  its 
origin,  it  will  be  considered,  as  it  is,  an  al 
most  equally  dangerous  heresy  to  constitu 
tional  liberty,  and  the  rebellion  ended,  perish 
with  the  other,  then  and  forever.  But  to  pro 
ceed  ;  such  commissions  were  authorized  by 
Lieut enant-General  Scott  in  his  Mexican  cam 
paign.  When  he  obtained  possession  of  the 
City  of  Mexico,  he,  on  the  17th  of  September, 
1847,  re-published,  with  additions,  his  order  of 
the  19th  of  February  preceding,  declaring 
martial  law.  By  this  order,  he  authorized 
the  trial  of  certain  offenses  by  military  com 
missions,  regulated  their  proceedings,  and 
limited  the  punishments  they  might  inflict. 
From  their  jurisdiction,  however,  he  excepts 
cases  "clearly  cognizable  by  court-martial," 
and  in  words  limits  the  cases  to  be  tried  to 
such  as  are  (I  quote)  "  not  provided  for  in  the 
act  of  Congress  establishing  rules  and  arti 
cles  for  the  government  of  the  armies  of  the 


appointment   it   also  provides  for.     But  how  I  United    States,"   of   the    10th  of   April,    1806. 
such  commissions  are  to  be  constituted,  what   The    second    clause    of    the    order    mentions, 


powers  they  are  to  have,  how  their  proceed 
ings  are  to  be  conducted,  or  what  cases  and 
parties  they  are  to  try,  is  not  provided  for. 
In  the  38th  section  of  the  second,  they  arc 
mentioned  as  competent  to  try  persons  "lurk 
ing  or  acting  as  spies."  The  same  absence  in 
the  particulars  stated  in  respect  to  the  first 
is  true  of  this.  And  as  regards  this  act  of 
1863,  this  reflection  forcibly'  presents  itself. 
If  military  commissions  can  be  created,  and 
from  their  very  nature  possess  jurisdiction  to 


among  other  oft'enses  to  be  so  tried,  "assassi 
nation,  murder,  poisoning;"  and  in  the  fourth 
(correctly,  as  I  submit,  with  all  respect  for  a 
contrary  opinion),  he  states  that  "the  rules 
and  articles  of  Avar"  do  not  provide  for  the 
punishment  of  any  one  of  the  designated  of 
fenses,  "  even  when  committed  by  individuals 
of  the  army  upon  the  persons  or  property  of 
other  individuals  of  the  same,  except  in  the 
very  restricted  case  in  the  9th  of  the  articles." 
The  authority,  too,  for  even  this  restricted 


try  all  alleged  military  offenses    (the  ground  !  commission — Scott — not  more  eminent  as  sol- 


on  which  your  jurisdiction,  it  is  said,  in  part 
rests),  why  was  it  necessary  to  give  them  the 
power,  by  express  words,  to  try  persons  '-lurk 
ing  or  acting  as  spies  ?"  The,  military  char 
acter  of  such  an  offense  could  not  have  been 
doubted.  What  reason,  then,  can  be  suggested 
for  conferring  the  power  by  express  language 
than  that  without  it  it  would  not  be  possessed? 
Before  these  statutes  a  commission,  called  a 
military  commission,  had  been  issued  by  the 
Executive  to  Messrs.  Davis,  Holt  and  Camp 
bell,  to  examine  into  certain  military  claims 
against  the  Western  Department,  and  Con- 


dier  than  civilian — placed  entirely  upon  the 
ground  that  the  named  offenses,  if  committed 
in  a  foreign  country  by  American  troops, 
could  not  be  punished  under  any  law  of  the 
United  States  then  in  force.  "The  Constitu 
tion  of  the  United  States  and  the  rules  and 
articles  of  war,"  he  said,  and  said  correctly, 
provided  no  court  for  their  trial  or  punish 
ment,  "no  matter  by  whom,  or  on  whom" 
committed.  Scott's  Autobiography,  392. 

Arid  he  further  tells  us  that  even  this  order, 
so  limited  and  so  called  for  by  the  greatest 
public  necessity,  when  handed  to  the  then 


gress,  by  its  resolution  of  the  llth  of  March,  I  Secretary  of  War  (Mr.  Marcv)  "for  his  ap- 
1862  (No.  18),  provided  for  the  payment  of  its  j  proval,"  "  a  startle  at  the  title  (martial  law 
awards.  Against  a  commission  of  that  char- (order)  was  the  only  comment  he  then,  or  ever, 


acter  no  objection  can  be  made.  It  is  but  an 
cillary  to  the  auditing  of  demands  upon  the 
Government,  and  in  no  way  interferes  with 
any  constitutional  right  of  the  citizen.  But 
until  this  rebellion  a  military  commission  like 
the  present,  organized  in  a  loyal  State  or  Ter 
ritory  where  the  courts  are  open  and  their 
proceedings  unobstructed,  clothed  with  the 
jurisdiction  attempted  to  be  conferred  upon 
you — a  jurisdiction  involving  not  only  the 
liberty,  but  the  lives  of  the  parties  on  trial — 
it  is  confidently  stated,  is  not  to  be  found 
sanctioned,  or  the  most  remotely  recognized. 


made  on  the  subject,"  and  that  it  was  "  soon 
silently  returned  as  too  explosive  for  safe 
handling."  "A  little  later  (he  adds),  the  At 
torney-General  (Mr.  Gushing)  called  and 
asked  for  a  copy,  and  the  law  officer  of  the 
Government,  whose  business  it  is  to  speak  on 
all  such  matters,  was  stricken  with  legal  dumb 
ness^''  H>.  How  much  more  startled  and 
more  paralyzed  would  these  great  men  have 
been  had  they  been  consulted  on  such  a  com 
mission  as  this  ! — a  commission,  not  to  sit  in 
another  country,  and  to  try  offenses  not  pro 
vided  for  by  any  law  of  the  United  States, 


THE    CONSPIRACY   TRIAL. 


255 


civil  or  military,  but  in  tl-.eir  own  country, 
and  in  a  part  of  it  where  there  are  laws  pro 
viding  for  their  trial  and  punishment,  and 
civil  courts  clothed  with  ample  powers  for 
both,  and  in  the  daily  and  undisturbed  exer 
cise  of  their  jurisdiction  ;  and  where,  if  there 
should  be  an  attempt  at  disturbance  by  a  force 
•which  they  had  not  the  power  to  control,  they 
could  invoke  (and  it  would  be  his  duty  to  af 
ford  it)  the  President  to  use  the  military 
power  at  his  command,  and  which  everybody 
knows  to  be  ample  for  the  purpose. 

If  it  be  suggested  that  the  civil  courts  and 
juries  for  this  District  could  not  safely  be  re 
lied  upon  for  the  trial  of  these  cases,  because 
either  of  incompetency,  disloyalty  or  corrup 
tion,  it  would  be  an  unjust  reflection  upon  the 
judges,  upon  the  people,  upon  the  Marshal,  an 
appointee  of  the  President,  by  whom  the  ju 
ries  are  summoned,  and  upon  our  civil  insti 
tutions  themselves — upon  the  very  institu 
tions  on  whose  integrity  and  intelligence  the 
safety  of  our  property,  liberty  and  lives,  our 
ancestors  thought,  could  not  only  be  safely 
rested,  but  would  be  safe  nowhere  else.  If  it 
be  suggested  that  a  secret  trial,  in  whole  or 
in  part,  as  the  Executive  might  deem  expe 
dient,  could  not  be  had  before  any  other  than 
a  military  tribunal,  the  answer  is  that  the 
Constitution,  "in  all  criminal  prosecutions,'1 
gives  the  accused  "the  right"  to  a  "public 
trial."  So  abhorrent  were  private  trials  to 
our  ancestors,  so  fatal  did  they  deem  them  to 
individual  security,  that  they  were  thus  de 
nounced,  and,  as  they  no  doubt  thought,  so 
guarded  against  as  in  all  future  time  to  be 
impossible.  If  it  be  suggested  that  witnesses 
may  be  unwilling  to  testify,  the  answer  is 
that  they  may  be  compelled  to  appear  and 
made  to  testify. 

But  the  suggestion,  upon  another  ground, 
is  equally  without  force.  It  rests  on  the  idea 
that  the  guilty  only  are  ever  brought  to  trial 
— that  the  only  object  of  the  Constitution  and 
laws  in  this  regard  is  to  afford  the  means  to 
establish  alleged  guilt;  that  accusation,  how 
ever  made,  is  to  be  esteemed  prima  facie  evi 
dence  of  guilt,  and  that  the  Executive  should 
be  armed,  without  other  restriction  than  his 
own  discretion,  with  all  the  appliances  deemed 
by  him  necessary  to  make  the  presumption 
from  such  evidence  conclusive.  Never  was 
there  a  more  dangerous  theory.  The  peril  to 
the  citizen  from  a  prosecution  so  conducted, 
as  illustrated  in  all  history,  is  so  great  that 
the  very  elementary  principles  of  constitu 
tional  liberty,  the  spirit  and  letter  of  the  Con 
stitution  itself  repudiate  it. 

II.  Innocent  parties,  sometimes  by  private 
malice,  sometimes  for  a  mere  partisan  pur 
pose,  sometimes  from  a  supposed  public  policy, 
have  been  made  the  subjects  of  criminal  accu 
sation.  History  is  full  of  such  instances. 
How  are  such  parties  to  be  protected  if  a  pub 
lic  trial,  at  the  option  of  the  Executive,  can 
be  denied  them,  and  a  secret  one,  in  whole,  or 
in  part,  substituted  ?  If  the  names  of  the 
witnesses,  and  their  evidence,  are  not  pub 
lished,  what  obstacle  does  it  not  interpose  to 
establish  their  innocence?  The  character  of 


the  witnesses  against,  them  may  be  all  import 
ant  to  that  end.  Kept  in  prison,  with  no 
means  of  consulting  the  outer  world,  how  can 
they  make  the  necessary  inquiries?  How  can 
those  who  may  know  the  witnesses  be  able  to 
communicate  with  them  on  the  subject?  A 
trial  so  conducted,  though  it  may  not,  as, 
no  doubt,  is  the  case  in  the  present  instance, 
be  intended  to  procure  the  punishment  of  any 
but  the  guilty,  it  is  obvious,  subjects  the  inno 
cent  to  great  danger.  It  partakes  more  of  the 
character  of  the  Inquisition,  which  the  en 
lightened  civilization  of  the  age  has  driven 
almost  wholly  out  of  existence,  than  of  a  tri 
bunal  suited  to  a  free  people.  In  the  palmiest 
days  of  that  tribunal,  kings,  as  well  as  people, 
stood  abashed  in  its  presence,  and  dreaded  its 
power.  The  accused  was  never  informed  of 
the  names  of  his  accusers ;  heresy,  suspected, 
was  ample  ground  for  arrest;  accomplices  and 
criminals  were  received  as  witnesses,  and  the 
whole  trial  was  secret,  and  conducted  in  a 
chamber  almost  as  silent  as  the  grave.  It  was 
long  since  denounced  by  the  civilized  world, 
not  because  it  might  not  at  times  punish  the 
heretic  (then,  in  violation  of  all  rightful  hu 
man  power,  deemed  a  criminal),  but  because 
it  was  as  likely  to  punish  the  innocent  as  the 
guilty.  A  public  trial,  therefore,  by  which  the 
names  of  witnesses  and  the  testimony  are 
given,  even  in  monarchical  and  despotic  Gov 
ernments,  is  now  esteemed  amply  adequate  to 
the  punishment  of  guilt,  and  essential  to  the 
protection  of  innocence.  Can  it  be  that  this 
is  not  true  of  us  ?  Can  it  be  that  a  secret 
trial,  wholly  or  partially,  if  the  Executive  so 
decides,  is  all  that  an  American  citizen  is  en 
titled  to  ?  Such  a  doctrine,  if  maintained  by 
an  English  monarch,  would  shake  his  govern 
ment  to  its  very  center,  and,  if  persevered  in, 
would  lose  him  his  crown.  It  will  be  no  an 
swer  to  these  observations  to  say  that  this 
particular  trial  has  been  only  in  part  a  secret 
one,  and  that  secrecy  will  never  be  resorted  to, 
except  for  purposes  of  justice.  The  reply  is, 
that  the  principle  itself  is  inconsistent  with 
American  liberty,  as  recognized  and  secured 
by  constitutional  guaranties.  It  supposes 
that,  whether  these  guaranties  are  to  be  en 
joyed  in  the  particular  case,  and  to  what  ex 
tent,  is  dependent  on  Executive  will.  The 
Constitution,  in  this  regard,  is  designed  to 
secure  them  in  spite  of  such  will.  Its  patri 
otic  authors  intended  to  place  the  citizen,  in 
this  particular,  wholly  beyond  the  power,  not 
only  of  the  Executive,  but  of  every  depart 
ment  of  the  Government.  They  deemed  the 
right  to  a  public  trial  vital  to  the  security  of 
the  citizen,  and  especially  and  absolutely 
necessary  to  his  protection  against  Executive 
power.  A  public  trial  of  all  criminal  prose 
cutions  they,  therefore,  secured  by  general  and 
unqualified  terms.  What  would  these  great 
men  have  said,  had  they  been  asked  so  to  qual 
ify  the  terms  as  to  warrant  its  refusal,  under 
any  circumstances,  and  make  it  dependent 
upon  Executive  discretion  ?  The  member  who 
made  the  inquiry  would  have  been  deemed  by 
them  a  traitor  to  liberty,  or  insane.  What 
would  they  have  said  if  told  that,  without 


256 


ARGUMENT    OF    REVERDY   JOHNSON. 


such  qualification,  the  Executive  would  be  able 
legally  to  impose  it  as  incidental  to  Executive 
power?  If  not  received  with  derision,  it 
would  have  been  indignantly  rejected  as  an 
imputation  upon  those  who,  at  any  time  there 
after,  should  legally  fill  the  office. 

III.  Let  me  present  the  question  in  another 
view.  If  such  a  Commission  as  this,  for  the 
trial  of  cases  like  the  present,  can  be  legally 
constituted,  can  it  be  done  by  mere  Executive 
authority  ? 

1.  You  are  a  Court,  and,  if  legally  exist 
ing,  endowed  with  momentous  power,  the 
highest  known  to  man,  that  of  passing  upon 
the  liberty  or  life  of  the  citizen.  By  the  ex 
press  words  of  the  Constitution  an  army  can 
only  be  raised,  and  governed  and  regulated, 
by  laws  passed  by  Congress.  In  the  exercise 
of  the  power  to  rule  and  govern  it,  the  act  be 
fore  referred  to,  of  the  10th  of  April,  1806,  es 
tablishing  the  articles  of  war,  was  passed. 
That  act  provides  only  for  courts-martial  and 
courts  of  inquii-y,  and  designates  the  cases  to 
be  tried  before  each,  and  the  laws  that  are  to 
govern  the  trial.  Military  commissions  are 
not  mentioned,  and,  of  course,  the  act  con 
tains  no  provision  for  their  government. 
Now,  it  is  submitted,  as  perfectly  clear,  that 
the  creation  of  a  court,  whether  civil  or  mili 
tary,  is  an  exclusive  legislative  function,  be 
longing  to  the  department  upon  which  the 
legislative  power  is  conferred.  The  jurisdic 
tion  of  such  a  court,  and  the  laws  and  regula 
tions  to  guide  and  govern  it,  is  also  exclu 
sively  legislative.  What  cases  are  to  be  tried 
by  it,  how  the  judges  are  to  be  selected,  and 
how  qualified,  what  are  to  be  the  rules  of  evi 
dence,  and  what  punishments  are  to  be  in 
flicted,  all  solely  belong  to  the  same  depart 
ment.  The  very  element  of  constitutional 
liberty,  recognized  by  all  modern  writers  on 
government  as  essential  to  its  security,  and 
carefully  incorporated  into  our  Constitution, 
is  a  separation  of  the  legislative,  judicial,  and 
executive  powers.  That  this  separation  is 
made  in  our  Constitution,  no  one  will  deny. 
Article  1st  declares  that  "All  legislative  pow 
ers  herein  granted  shall  be  vested  in  a  Con 
gress."  Article  2d  vests  "the  Executive 
power"  in  a  President,  and  Article  3d,  "the 
judicial  power"  in  certain  designated  courts, 
and  in  courts  to  be  thereafter  constituted  by 
Congress.  There  could  not  be  a  more  careful 
segregation  of  the  three  powers.  If,  then, 
courts,  their  laws,  modes  of  proceeding,  and 
judgments,  belong  to  legislation  (and  this,  I 
suppose,  will  not  be  questioned),  in  the  absence 
of  legislation  in  regard  to  this  Court,  and  its 
jurisdiction  to  try  the  present  cases,  it  has  for 
that  purpose  no  legal  existence  or  authority. 
The  Executive,  whose  functions  are  altogether 
executive,  can  not  confer  it.  The  oifeiises  to 
be  tried  by  it,  the  laws  to  govern  its  proceed 
ings,  the  punishment  it  may  award,  can  not, 
for  the  same  reason,  be  prescribed  by  the  Ex 
ecutive.  These,  as  well  as  the  mere  constitu 
tion  of  the  Court,  all  exclusively  belong  to 
Congress.  If  it  be  contended  that  the  Execu 
tive  has  the  powers  in  question,  because  by  im 
plication  they  are  involved  in  the  war  power, 


or  in  the  President's  constitutional  function  as 
\  commander-in-chief  of  the  army,  then  Ihis 
;  consequence  would  follow,  that  they  would 
|  not  be  subject  to  Congressional  control,  as 
that  department  has  no  more  right  to  interfere 
with  the  constitutional  power  of  the  Executive 
than  that  power  has  a  right  to  interfere  with 
that  of  Congress.  If,  by  implication,  the 
powers  in  question  belong  to  the  Executive,  he 
may  not  only  constitute  and  regulate  military 
commissions,  and  prescribe  the  laws  for  their 
government,  but  all  legislation  upon  the  sub 
ject  by  Congress  would  be  usurpation.  That 
the  proposition  leads  to  this  result  would  seem 
to  be  clear,  and,  if  it  does,  that  result  itself  is 
so  inconsistent  with  all  previous  legislation, 
and  all  executive  practice,  and  so  repugnant 
to  every  principle  of  constitutional  liberty, 
that  it  demonstrates  its  utter  unsoundness. 
Under  the  power  given  to  Congress,  "  to  make 
rules  for  the  government  and  regulation  of  the 
land"  forces,  they  have,  from  time  to  time,  up 
to  and  including  the  act  of  the  10th  of  April, 
1806,  and  since,  enacted  such  rules  as  they 
deemed  to  be  necessary,  as  well  in  war  as  in 
peace,  and  their  authority  to  do  so  has  never 
been  denied.  This  power,  too,  to  govern  and 
regulate,  from  its  very  nature,  is  exclusive. 
Whatever  is  not  done  under  it,  is  to  be  consid 
ered  as  purposely  omitted.  The  words  used  in 
the  delegation  of  the  power,  "  govern  and  reg 
ulate,"  necessarily  embrace  the  entire  subject, 
and  exclude  all  like  authority  in  others..  The 
end  of  such  a  power  can  not  be  attained,  ex 
cept  through  uniformity  of  government,  and 
regulation,  and  this  is  not  to  be  attained  if  the 
power  is  in  two  hands.  To  be  effective,  there 
fore,  it  must  be  in  one,  and  the  Constitution 
gives  it  to  one — to  Congress — in  express 
terms,  and  nowhere  intimates  a  purpose  to  be 
stow  it,  or  any  portion  of  it,  upon  any  other 
department.  In  the  absence,  then,  of  all  men 
tion  of  military  commissions  in  the  Constitu 
tion,  and  in  the  presence  of  the  sole  authority 
it  confers  on  Congress,  by  rules  of  its  own  en 
acting,  to  govern  and  regulate  the  army,  and, 
in  the  absence  of  all  mention  of  such  commis 
sions  in  the  act  of  the  10th  of  April,  1806,  and 
of  a  single  word  in  that  act,  or  in  any  other, 
how  can  the  power  be  considered  as  in  the 
President?  Further,  upon  what  ground,  other 
than  those  I  have  examined,  can  his  authority 
be  placed? 

I.  Is  it  that  the  constitutional  guaranties 
referred  to  are  designed  only  for  a  state  of 
peace?  There  is  not  a  syllable  in  the  instru 
ment  that  justifies,  even  plausibly,  such  a 
qualification.  They  are  secured  by  the  most 
general  and  comprehensive  terms,  wholly  in 
consistent  with  any  restriction.  They  are, 
also,  not  only  not  confined  to  a  condition  of 
peace,  but  are  more  peculiarly  necessary  to 
the  security  of  personal  liberty  in  war  than  in 
peace.  All  history  tells  us  that  war,  at  times, 
maddens  the  people,  frenzies  government,  and 
makes  both  regardless  of  constitutional  lim 
itations  of  power.  Individual  safety,  at  such 
periods,  is  more  in  peril  than  at  any  other. 
Constitutional  limitations  and  guaranties  are, 
then,  also  absolutely  necessary  to  the  protec- 


THE   CONSPIRACY   TRIAL. 


257 


tion  of  the  Government   itself.     The  maxim, :  not  embrace  the  crimes  charged   against  these 
"saluipopuli  supremo,  cst  lex,"  is  but  fit  for  a  ty-j  parties  or  the  parties  themselves. 

Under  its  pretense  the  grossest)      First.     The  charge  is  a  traitorous   conspiracy 


rants    use. 


wrongs  have  been   committed,  the  most  awful!  to  take  the  lives  of 'the  designated    persons    "in 
crimes    perpetrated,    and    every    principle   of  j  aid  of  the  existing    armed   rebellion."     Second. 


freedom  violated,  until,  at  last,  worn  down  by 
suifering,  the  people,  in  very  despair,  have 
acquiesced  in  a  resulting  despotism.  The 
safety  which  liberty  needs,  and  without  which 
it  sickens  and  dies,  is  that  which  law,  and  not 
mere  unlicensed  human  will,  affords.  The 
Aristotelian  maxim,  uSalui  publica  supremas  est 
lex" — "Let  the  public  weal  be  under  the  pro 
tection  of  the  law" — is  the  true  and  only  safe 
maxim.  Nature,  without  law,  would  be  chaos ; 


That  in  the  execution  of  the  conspiracy,  the 
actual  murder  of  the  late  President,  and  the 
attempted  murder  of  the  Secretary  of  State, 
occurred.  Throughout  the  charge  and  its  spec 
ification,  the  conspiracy  and  its  attempted 
execution  are  alleged  to  have  been  traitorous. 
The  accusation,  therefore,  is  not  one  merely  of 
murder,  but  of  murder  designed  and  in  part 
accomplished,  with  traitorous  purpose.  If  the 
charge  is  true,  and  the  intent  (which  is  made  a 


government,  without  law,  anarchy  or  despot-  j  substantial  part  of  it)    be   also    true,    then 
ism.     Against  both  these  last,  in  war  and  in   crime     is    treason,    and     not     simple 


the 


peace,  the  Constitution  happily  protects  us. 

II.  If  the  power  in  question  is  claimed  un 
der  the  authority  supposed  to  be  given  the 
President,  in  certain  cases  to  suspend  the  writ 


Treason  against  the  United  States,  as  defined 
by  the  Constitution,  can  "consist  only  in  levy 
ing  war  against  them,  or  in  adhering  to  their 


of  habeas  corpus  and 
the  claim  is  equally, 
untenable. 


enemies,     giving     them      aid     and    comfort." 

to  declare   martial  law,  j  ///  Art.     This  definition  not  only  tells  us  what 
treason  is,  but  tells  us  that  no  other  crime  than 


if  not   more   evidently, 


1.  Because  the  first  of  these  powers,  if  given 
to  the  President  at  all,  is  given  "  when,  in  cases 
of  rebellion  or  invasion,"  he  deems  the  public 
safety  requires  it.  I  think  he  has  this  power, 
but  there  are  great  and  patriotic  names  who 
think  otherwise.  But  if  he  has  it,  or  if  it  be 
in  Congress  alone,  it  is  entirely  untrue  that 
its  exercise  works  any  other  result  than  the 
suspension  of  the  writ — the  temporary  suspen 
sion  of  the  right  of  having  the  cause  of  arrest 
passed  upon  at  once  by  the  civil  judges.  It 
in  no  way  impairs  or  suspemds  the  other  rights 
secured  to  the  accused.  In  what  court  he  is  to 
be  tried,  how  he  is  to  be  tried,  what  evidence  is 
to  be  admitted,  and  what  judgment  pronounced 
are  all  to  be  what  the  Constitution  secures,  and 
the  laws  provide  in  similar  cases,  when  there  is 
no  suspension,  of  the  writ.  The  purpose  of  the 
writ  is  merely,  without  delay,  to  ascertain  the 
legality  of  the  arrest.  If  adjudged  legal,  the 
party  is  detained ;  if  illegal,  discharged.  But 
in  either  contingency,  when  he  is  called  to  an 
swer  any  criminal  accusation,  and  he  is  a  civil 
ian,  and  not  subject  to  the  articles  of  war  con 
stitutionally  enacted  by  Congress,  "it  must  be 
done  by  presentment  or  indictment,  and  his 
trial  be  had  in  j;  civil  court,  having,  by  State  or 
Congressional  legislation,  jurisdiction  over  the 
crime  and  under  laws  governing  the  tribunal 
and  defining  the  punishment.  The  very  fact, 
too,  that  express  power  is  given  in  a  certain 
condition  of  things  to  suspend  the  writ  referred 
to,  and  that  no  power  is  given  to  suspend  or 
deny  any  of  the  other  securities  for  personal 
liberty  provided  by  the  Constitution,  is  conclu 
sive  to  show  that  all  of  the  latter  were  designed 
to  be  in  force  "  in  cases  of  rebellion  or  inva 
sion,"  as  well  as  in  a  state  of  perfect  peace  and 
safety. 

III.  I  have  already  referred  to  the  act  of 
1806  establishing  the  articles  of  war,  and  said 
what  must  be  admitted,  that  it  provides  for  no 
military,  court  like  this.  But  for  argument's 
sake,  let  it  be  conceded-  that  it  does.  And  1 
then  maintain,  with  becoming  confidence  and 


the  defined  one  shall  be  considered  the  offense. 
And  the  same  section  provides  that  "no  person 
shall  be  convicted  of  treason,  except  on  the  tes 
timony  of  two  witnesses  to  the  same  overt  act, 
or  on  confession  in  open  court,"  and  gives  to 
Congress  the  power  to  declare  what  its  punish 
ment  shall  be.  The  offense  in  the  general  is 
the  same  in  England.  In  that  country,  at  no 
period  since  its  freedom  became  settled,  has  any 
other  treason  been  recognized.  During  the 
pendency  of  this  rebellion  (never  before),  it  has 
been  alleged  that  there  exists  with  us  the  offense 
of  military  treason,  punishable  by  the  laws  of 
war.  It  is  so  stated  in  the  instructions  of  Gen 
eral  Halleck  to  the  then  commanding  officer  in 
Tennessee,  of  the  5th  of  March,  1803.  Laiv- 
rence's  Wheaton,  Suppt.  p.  41.  But  Halleck 
confines  it  to  acts  committed  against  the  army 
of  a  belligerent,  when  occupying  the  territory 
of  the  enemy.  And  he  says  what  is  certainly 
true,  if  such  an  offense  can  be  committed,  that 
it  "is  broadly  distinguished  from  the  treason 
defined  in  the  constitutional  and  statutory  laws, 
and  made  punishable  by  the  civil  courts."  But 
the  term  military  treason  is  not  to  be  found  in 
any  English  work  or  military  order,  or,  before 
this  rebellion,  in  any  American  authority. 

It  has  evidently  been  adopted  during  the 
rebellion  as  a  doctrine  of  military  law  on  the 
authority  of  continental  writers  in  governments 
less  free  than  those  of  England  and  the  United 
States,  and  in  which,  because  they  are  less  free, 
treason  is  made  to  consist  of  certain  specific 
acts,  and  no  others.  But  if  Halleck  is  right, 
and  all  our  prior  practice,  and  that  of  England, 
from  whom  we  derive  ours,  is  to  be  abandoned, 
the  cases  before  you  are  not  cases  of  "military 
treason,"  as  he  defines  it.  When  the  offense 
here  alleged  is  stated  to  have  occurred  in  this 
District,  the  United  States  were  not  and  did 
not  claim  to  be  in  its  occupation  as  a  belliger 
ent,  nor  was  it  pretended  that  the  people  of 
this  District  were,  in  a  belligerent  sense,  ene 
mies.  On  the  contrary,  they  were  citizens 
entitled  to  every  right  of  citizenship.  Nor 
were  the  parties  on  trial  enemies.  They  were 


due  respect  for  a  different  opinion,  that  it  does  i  either  citizens  of  the   District,  or  of  Maryland, 

17 


258 


ARGUMENT    OF    REVERDY   JOHNSON. 


and  under  the  protection  of  the  Constitution. 
The  ofl'ense  charged,  then,  being  treason,  it  is 
treason  as  known  to  the  Constitution  and  laws, 
and  can  only  be  tried  and  punished  as  they 
provide.  To  consider  these  parties  belligerents, 
and  their  alleged  offense  military  treason,  is  not 
only  unwarranted  by  the  authority  of  Halleck, 
but  is  in  direct  conflict  with  the  Constitution 
and  laws  which  the  President  and  all  of  us  are 
bound  to  support  and  defend.  The  offense,  then, 
being  treason,  as  known  to  the  Constitution,  its 
trial  by  a  military  court  is  clearly  illegal.  And 
this  for  obvious  reasons.  Under  the  Constitu 
tion  no  conviction  of  such  an  offense  can  be  had, 
"unless  on  the  testimony  of  two  witnesses  to 
the  same  overt  act,  or  on  confession  in  open 
court."  And  under  the  laws  the  parties  are 
entitled  to  have  "a  copy  of  the  indictment  and 
a  list  of  the  jury  and  witnesses,  with  the  names 
and  places  of  abode  of  both,  at  least  three  en 
tire  days  before  the  trial."  They  also  have  the 
right  to  challenge  peremptorily  thirty-five  of 
the  jury,  and  to  challenge  for  cause  without 
limitation.  And  finally,  unless  the  indictment 
shall  be  found  by  a  grand  jury  within  three 
years  next  after  the  treason  done  or  committed, 
they  shall  not  be  prosecuted,  tried  or  punished. 
Act  30th  April,  1790,  1  stat.  at  large,  118,  119. 
Upon  what  possible  ground,  therefore,  can  this 
Commission  possess  the  jurisdiction  claimed  for 
it?  It  is  not  alleged  that  it  is  subject  to  the 
provisions  stated,  and  in  its  very  nature  it  is 
impossible  that  it  should  be.  The  very  safe 
guards  designed  by  the  Constitution,  if  it  has 
such  jurisdiction,  are  wholly  unavailing.  Trial 
by  jury  in  all  cases,  our  English  ancestors 
deemed  (as  Story  correctly  tells  us),  "the  great 
bulwark  of  their  civil  and  political  liberties, 
and  watched  with  an  unceasing  jealousy  and 
solicitude."  It  constituted  one  of  the  funda 
mental  articles  of  Magna  Charta — "  Nullus  liber 
homo  capiatur  nee  imprisonetur  out  ezulet,  aut 
aliquo  modo,  deslruatur,  etc,.;  nisi  per  legae  judidum 
parium  suorum,  vcl  per  legem,terrea."  This  great 
right  the  American  colonists  brought  with  them 
as  their  birth-right  and  inheritance.  It  landed 
with  them  at  Jamestown  and  on  the  rock 
of  Plymouth,  and  was  equally  prized  by  Cav 
alier  and  Puritan;  and  ever  since,  to  the 
breaking  out  of  the  rebellion,  has  been  enjoyed 
and  esteemed  the  protection  and  proud  privi 
lege  of  their  posterity.  At  times,  during  the 
rebellion,  it  has  been  disregarded  and  denied. 
The  momentous  nature  of  the  crisis,  brought 
about  by  that  stupendous  crime,  involving,  as 
it  did,  the  very  life  of  the  nation,  has  caused 
the  people  to  tolerate  such  disregard  and  de 
nial.  But  the  crisis,  thank  God,  has  passed. 
The  authority  of  the  Government  throughout 
our  territorial  limits  is  reinstated  so  firmly 
that  reflecting  men,  here  and  elsewhere,  are 
convinced  that  the  danger  has  passed  never  to 
return.  The  result  proves  that  the  principles 
on  which  the  Government  rests  have  imparted 
to  it  a  vitality  that  will  cause  it  to  endure  for 
all  time,  in  spite  of  foreign  invasion  or  domes 
tic  insurrection;  and  one  of  those  principles — 
the  choicest  one — is  the  right  in  cases  of  "crim 
inal  prosecutions  to  a  speedy  and  public  trial 
by  an  impartial  jury,"  and  in  cases  of  treason 


to  the  additional  securities  before  adverted  to. 
The  great  purpose  of  Magna  Charta  and  the 
Constitution  was  (to  quote  Story  again)  '-to 
guard  against  a  spirit  of  oppression  and  tyran 
ny  on  the  part  of  rulers,  and  against  a  spirit 
of  violence  and  vindictiveness  on  the  part,  of 
the  people."  The  appeal  for  safety  can,  under 
such  circumstances,  scarcely  be  made  by  inno 
cence  in  any  other  manner  than  by  the  severe 
control  of  courts  of  justice,  and  by  the  firm  and 
impartial  verdict  of  a  jury  sworn  to  do  right, 
and  guided  solely  by  legal  evidence  and  a  sense 
of  duty.  In  such  a  course  there  is  a  double 
security  against  the  prejudices  of  judges,  who 
may  partake  of  the  wishes  and  opinions  of  the  Gov 
ernment,  and  against  the  passions  of  the  multi 
tude,  who  may  demand  their  victim  with  a 
clamorous  precipitancy."  And  Mr.  Justice 
Blackstone,  with  the  same  deep  sense  of  its 
value,  meets  the  prediction  of  a  foreign  writer, 
"that  because  Rome,  Sparta,  and  Carthage  have 
lost  their  liberties,  those  of  England  in  time 
must  perish,"  by  reminding  him,  "that  Home, 
Sparta,  and  Carthage,  at  the  tvne  when  their 
liberties  were  lost,  were  strangers  to  the  trial  by 
jury.'"  3  Bla.,  379.  That  a  right  so  valued,  and 
esteemed  by  our  fathers  to  be  so  necessary  to 
civil  liberty,  so  important  to  the  very  existence 
of  a  free  government,  was  designed  by  them  to 
be  made  to  depend  for  its  enjoyment  upon  the 
war  power,  or  upon  any  power  intrusted  to  any 
department  of  our  Government,  is  a  reflection 
on  their  intelligence  and  patriotism. 

IV.  But  to  proceed:  The  articles  of  war,  if 
they  provided  for  the  punishment  of  the  crimes 
on  trial,  and  authorized  such  'a  court  as  this, 
do  not  include  such  parties  as  are  now  on 
trial.  And,  until  the  rebellion,  I  am  not 
aware  that  a  different  construction  was  ever 
intimated.  It  is  the  exclusive  fruit  of  the  re 
bellion. 

The  title  of  the  act  is,  "  An  act  for  establish 
ing  rules  and  articles  for  the  government  of 
the  armies  of  the  United  States.'' 

The  first  section  states  "  the  following  shall 
be  the  rules  and  articles  by  which  the  armies 
of  the  United  States  shall  be  governed,"  and  every 
other  section,  except  the  5Gth  and  57th,  are,  in 
woi'ds,  confined  to  persons  belonging  to  the 
army  in  some  capacity  or  other.  I  under 
stand  it  to  be  held  by  some,  that  because  such 
words  are  not  used  in  the  two  sections  re 
ferred  to,  it  was  the  design  of  Congress  to  in 
clude  persons  who  do  not  belong  to  the  army. 
In  my  judgment,  this  is  a  wholly  untenable 
construction ;  but  if  it  was  a  correct  one,  it 
would  not  justify  the  use  sought,  to  be  made 
of  it  in  this  instance.  It  would  not  bring 
these  parties  for  their  alleged  crime  before  a 
military  court  known  to  the  act;  certainly 
not  before  a  military  commission — a  court  un 
known  to  the  act.  The  offense  charged  is  a 
traitorous  conspiracy,  and  murder  committed 
in  pursuance  of  it.  Neither  offense,  conspir 
acy  or  murder,  if  indeed  two  are  charged,  is 
embraced  by  either  the  5Gth  or  57th  articles 
of  the  statute.  The  5Gth  prohibits  the  reliev 
ing  "the  enemy  with  money,  victuals  or  am 
munition,  or  knowingly  harboring  and  pro 
tecting  him."  Sophistry  itself  can  not  bring 


THE    CONSPIRACY   TRIAL. 


259 


the  offenses  in  question^  under  this  article.  [  army  can  not  be  subjected  to  such  a  jurisdic- 
The  57th  prohibits  only  the  "holding  corre-ltion.  1.  The  character  of  the  pleadings.  The 
spoiidence  with,  or  giving  intelligence  to  the  i  offense  charged  is  a  conspiracy  with  persons 
enemy,  either  directly  or  indirectly."  It  is  !  not  within  the  reach  of  the  Court,  and  some 
equally  clear  that  the  offenses  in  question  are]  of  them  in  a  foreign  country,  to  commit  the 
not  within  this  provision.  But,  in  fact,  the  alleged  crime.  To  give  you  jurisdiction,  the 


two  articles  relied  upon  admit  of  no  such  con 
struction  as  is  understood  to  be  claimed. 
This  is  thought  to  be  obvious,  not  only  from 
the  general  character  of  the  act,  and  of  all  the 
other  articles  it  contains,  but  because  the  one 
immediately  preceding,  like  all  those  preced 
ing  and  succeeding  it,  other  than  the  56th  and 
57th,  includes  only  persons  belonging  to  the 


design  of  the  accused  and  their  co-conspira 
tors  is  averred  to  have  been  to  aid  the  rebel 
lion,  and  to  accomplish  that  end  not  only  by 
the  murder  of  the  President  and  Lieutenant- 
General  Grant,  but  of  the  Vice-President  and 
Secretary  of  State.  It  is  further  averred  that 
the  President  being  murdered,  the  Vice-Presi 
dent  becoming  thereby  President,  and  as  such, 


armies  of  the  United  States."     Its  language   Commander-in-Chief,  the  purpose  was  to  mur- 


is,  "  whosoever  belonging  to  the  armies  of  the 
United  States,  employed  in  foreign  parts,"  shall 
do  the  act  prohibited,  shall  suffer  the  pre 
scribed  punishment.  Now,  it  is  a  familiar 
rule  of  interpretation,  perfectly  well  settled 
in  such  a  case,  that  unless  there  be  something 
in  the  following  sections  that  clearly  shows  a 
purpose  to  make  them  more  comprehensive 
than  their  immediate  predecessor,  they  are  to 
be  construed  as  subject  to  the  same  limitation. 
So  far  from  there  being  in  this  instance,  any 
evidence  of  a  different  purpose,  the  declared 
object  of  the  statute,  as  evidenced  by  its  title, 
its  first  section,  and  its  general  contents,  are 
all  inconsistent  with  any  other  construction 
And  when  to  this  it  is  considered  that  the 
power  exercised  by  Congress  in  passing  the 
statute  was  merely  the  constitutional  one  to 
make  rules  for  the  government  and  regulation 
of  the  army,  it  is  doing  great  injustice  to  that 
department  to  suppose  that  in  exei'cising  it 
they  designed  to  legislate  for  any  other  class. 
The  words,  therefore,  in  the  55th  article,  "be 
longing  to  the  armies  of  the  United  States," 
qualifying  the  immediate  preceding  word, 
"  whosoever,"  are  applicable  to  the  56th  and 
57th,  and  equally  qualify  the  same  word 
11  whosoever  "  also  used  in  each  of  them.  And, 
finally,  upon  this  point  I  am  supported  by  the 
authority  of  Lieutenant-General  Scott.  The 
Commission  have  seen  from  my  previous  ref 
erence  to  his  autobiography  that  he  placed  his 
right  to  issue  his  martial  law  order,  establish 
ing,  among  other  things,  military  commis 
sions  to  try  certain  offenses  in  a  foreign  coun 
try,  upon  the  ground  that  otherwise  they 
would  go  unpunished,  and  his  army  become 
demoralized.  One  of  these  offenses  was  mur 
der  committed  or  attempted,  and  for  such  an 
offense  he  tells  us  that  the  articles  of  war  pro 
vided  no  court  for  their  trial  and  punish 
ment,  "'no  matter  by  whom  or  on  whom  com 
mitted."  And  this  opinion  is  repeated  in  the 
4th  clause  of  his  order,  as  true  of  all  the  des 
ignated  offenses,  "except  in  the  very  restrict 
ed  case  in  the  9th  of  the  article." 

V.  There  are  other  views  which  I  submit  to 
the  serious  attention  of  the  Commission. 

I.  The  mode  of  proceeding  in  a  court  like 
this,  and  which  has  been  pursued  by  the  pros 
ecution,  with  your  approval,  because  deemed 
legal  by  both,  is  so  inconsistent  with  the  pro 
ceedings  of  civil  courts,  as  regulated  for  ages 
by  established  law,  that  the  fact,  I  think,  dem 
onstrates  that  persons  not  belonging  to  the 


der  him ;  and  as,  in  the  contingency  of  the 
death  of  both,  it  would  be  the  duty  of  the  Sec 
retary  of  State  to  cause  an  election  to  be  held 
for  President  atid  Vice-President,  he  was  to 
be  murdered  in  order  to  prevent  a  "lawful 
election"  of  these  officers;  and  that  by  all 
these  means,  "aid  and  comfort"  were  to  be 
given  "  the  insurgents  engaged  in  armed  re 
bellion  against  the  United  States,"  and  "  the 
subversion  and  overthrow  of  the  Constitution 
and  laws  of  the  United  States "  thereby 
effected.  That  such  pleading  as  this  would 
not  be  tolerated  in  a  civil  court,  I  suppose 
every  lawyer  will  concede.  It  is  argumenta 
tive,  and  even  in  that  character  unsound. 
The  continuance  of  our  Government  does  not 
depend  on  the  lives  of  any  or  of  all  of  its  pub 
lic  servants.  As  fact,  or  law,  therefore,  the 
pleading  is  fatally  defective.  The  Govern 
ment  has  an  inherent  power  to  preserve  itself, 
which  no  conspiracy  to  murder,  or  murder, 
can  in  the  slightest  degree  impair.  And  the 
result  which  we  have  just  witnessed  proves 
this,  and  shows  the  folly  of  the  madman  and 
fiend  by  whose  hands  our  late  lamented  Pres 
ident  fell.  He,  doubtless,  thought  that  he  had 
done  a  deed  that  would  subvert  the  "Consti 
tution  and  laws."  We  know  that  it  has  not 
had  even  a  tendency  to  that  result.  Not  a 
power  of  the  Government  was  suspended;  all 
progressed  as  before  the  dire  catastrophe.  A 
cherished  and  almost  idolized  citizen  was 
snatched  from  us  by  the  assassin's  arm,  but 
there  was  no  halt  in  the  march  of  the  Govern 
ment.  That  continued  in  all  its  majesty 
The  only  effect  was  to 
tears,  and  drape  it  in 
mourning,  and  to  awake  the  sympathy,  and 
excite  the  indignation  of  the  world. 

II.  But  this  mode  of  pleading  renders,  it 
would  seem,  inapplicable,  the  rules  of  evi 
dence  known  to  the  civil  courts.  It  justifies, 
in  the  opinion  of  the  Judge  Advocate  and  the 
Court  (or  what  has  been  done  would  not  have 
been  done),  a  latitude  that  no  civil  court 
would  allow,  as  in  the  judgment  of  such  a 
court  the  accused,  however  innocent,  could 
not  be  supposed  able  to  meet  it.  Proof  has 
been  received,  not  only  of  distinct  offenses 
from  those  charged,  but  of  such  offenses  com 
mitted  by  others  than  the  parties  on  trial. 
Even  in  regard  to  the  party  himself,  other  of- 
enses  alleged  to  have  been  previously  com 
mitted  by  him  can  not  be  proved.  At  one  time 
a  different  practice  prevailed  in  England,  and 


wholly   unimpeded, 
place    the   nation  in 


260 


ARGUMENT    OF    REVERDY   JOHNSON. 


does  now,  it  is  believed,  in  some  of  the  Conti 
nental  governments.  But  since  the  days  of 
Lord  Holt  (a  name  venerated  by  lawyers  and 
all  admirers  of  enlightened  jurisprudence),  it 
has  not  prevailed  in  England.  In  the  case  of 
Harrison,  tried  before  that  judge  for  murder, 
the  counsel  for  the  Government  offered  a  wit 
ness  to  prove  some  felonious  design  of  the 
prisoner  three  years  before.  Holt  indignantly 
exclaimed,  ''Hold!  hold!  what  are  you  doing 
now  ?  How  can  he  defend  himself  from 
charges  of  which  he  has  no  notice  ?  And  how 
many  issues  are  to  be  raised  to  perplex  me 
and  the  jury?  Away!  away!  that  ought  not 
to  be — that  is  nothing  to  the  matter."  12  State 
Trials,  883-874.  I  refer  to  this  case,  not  to  as 
sail  what  has  been  done  in  these  cases  contrary 
to  this  rule,  because  I  am  bound  to  infer  that 
before  such  a  commission  as  this  the  rule  has 
no  legal  force.  If,  in  a  civil  court,  then,  these 
parties  would  be  entitled  to  the  benefit  of  this 
rule,  one  never  departed  from  in  such  courts, 
they  would  not  have  had  proved  against  them 
crimes  alleged  to  have  been  committed  by  oth 
ers,  and  having  no  necessary  or  legal  connec 
tion  with  those  charged.  With  the  same  view, 
and  not  denying  the  right  of  the  Commission 
in  the  particular  case  I  am  about  to  refer  to, 
but  to  show  that  the  Constitution  could  not 
have  designed  to  subject  citizens  to  the  prac 
tice,  I  cite  the  same  judge'to  prove  that  in  a 
civil  court  those  parties  could  not  have  been 
legally  fettered  during  their  trial.  In  the  case 
of  Cranbum,  accused  as  implicated  in  the  "as 
sassination  plot,"  on  trial  before  the  same 
judge,  Holt  put  an  end  to  what  Lord  Campbell 
terms  "  the  revolting  practice  of  trying  prison 
ers  in  fetters."  Hearing  the  clanking  of 
chains,  though  no  complaint  was  made  to  him, 
he  said,  "I  should  like  to  know  why  the  pris 
oner  is  brought  in  ironed."  "  Let  them  be  in 
stantly  knocked  off.  When  prisoners  are  tried 
they  should  stand  at  their  ease."  13  State 
Trials,  221,  2d  Campbell,  Lipes  Chief  Justices, 
140.  Finally,  I  deny  the  jurisdiction  of  the 
Commission,  nofc  only  because  neither  Consti 
tution  or  laws  justify,  but,  on  the  contrary,  re 
pudiate  it,  but  on  the  ground  that  all  the  ex 
perience  of  the  past  is  against  it.  Jefferson, 
ardent  in  the  prosecution  of  Burr,  and  solicit 
ous  for  his  conviction,  from  a  firm  belief  of  his 
guilt,  never  suggested  that  he  should  be  tried 
before  any  other  than  a  civil  court.  And  in 
that  trial,  so  ably  presided  over  by  Marshall, 
the  prisoner  was  allowed  to  "  stand  at  his 
ease;"  was  granted  every  constitutional  priv 
ilege,  and  no  evidence  was  permitted  to  be 
given  against  him  but  such  as  a  civil  court 
recognizes;  and  in  that  case,  as  in  this,  the 
overthrow  of  the  Government  was  the  alleged 
purpose,  and  yet  it  was  not  intimated  in  any 
quarter  that  he  could  be  tried  by  a  military 
tribunal.  In  England,  too,  the  doctrine  on 
which  this  prosecution  is  placed  is  unknown. 
Attempts  were  made  to  assassinate  George  the 
Third  and  the  present  Queen,  and  Mr.  Perci- 


navy,  in  whom,  too,  the  whole  war  powei  of 
the  Government  was  also  vested ;  in  the  last, 
a  secretary,  clothed  with  powers  as  great,  a* 
least,  as  those  that  belong  to  our  Secretary  of 
State;  and  yet,  in  each,  the  parties  accused 
were  tried  before  a  civil  court,  no  one  suggest 
ing  any  other.  And  during  the  period  of  the 
French  Revolution,  when  its  principles,  it' 
principles  they  can  be  termed,  were  being  in 
culcated  in  England  to  an  extent  that  alarmed 
the  Government,  and  caused  it  to  exert,  every 
power  it  was  thought  to  possess  to  frustrate 
their  effect,  when  the  writ  of  habeas  corpus  was 
suspended,  and  arrests  and  prosecutions  re 
sorted  to  almost  without  limit,  no  one  suggest 
ed  a  trial,  except  in  the  civil  courts.  And 
yet  the  apprehension  of  the  Government  was, 
that  the  object  of  the  alleged  conspirators  was 
to  subvert  its  authority,  bring  about  its  over 
throw,  and  subject  the  kingdom  to  the  horrors 
of  the  French  Revolution,  then  shocking  the 
nations  of  the  world.  Hardy,  Horne  Tooke, 
and  others,  were  tried  by  civil  courts,  and 
their  names  are  remembered  for  the  principles 
of  freedom  that  were  made  triumphant  mainly 
through  the  efforts  of  "  that  great  genius,"  in 
the  words  of  a  modern  English  statesman  (Earl 
Russell),  "  whose  sword  and  buckler  protected 
justice  and  freedom  during  the  disastrous  pe 
riod;"  having  "the  tongue  of  Cicero  and  the 
soul  of  Hampden,  an  invincible  orator  and  an 
undaunted  patriot."  Erskine. 

As  it  was,  these  trials  were  conducted  in  so 
relentless  a  spirit,  and,  as  it  was  thought,  with 
such  disregard  of  the  rights  of  the  subject, 
that  the  administration  of  the  day  were  not 
able  to  withstand  the  torrent  of  the  people's 
indignation.  What  would  have  been  their 
fate,  individually  as  well  as  politically,  if  the 
ases  had  been  tried  before  a  military  commis 
sion,  and  life  taken  ?  Can  it  be  that  in  this 
particular  an  American  citizen  is  not  entitled 
:o  all  the  rights  that  belong  to  a  British  sub 
ject?  Can  it  be  that  with  us  Executive  power 
at  times  casts  into  the  shade  and  renders  ail 
other  power  subordinate?  An  American 
statesman,  with  a  world-wide  reputation,  long 
since  gave  answer  to  these  inquiries.  In  a 
lebate  in  the  Senate  of  the  United  States,  in 
which  he  assailed  what  he  deemed  an  unwar 
ranted  assumption  of  Executive  power,  he 
said,  "the  first  object  of  a  free  people  is  the 
preservation  of  their  liberties,  and  liberty  is 
only  to  be  maintained  by  constitutional  rcs- 
raints  and  just  divisions  of  political  power." 
"It  does  not  trust  the  amiable  weaknesses  of 
human  nature,  and,  therefore,  will  not  per 
mit  power  to  overstep  its  prescribed  limits, 
though  benevolence,  good  intent,  and  patri 
otic  intent  come  along  with  it."  And  he 
added,  "Mr.  President,  the  contest  for 
las  been  to  rescue  liberty  from  the  grasp  of 
Executive  power."  "In  the  long  list  of  the 
champions  of  human  freedom  there  is  not  one 
name  dimmed  by  the  reproach  of  advoca 
ting  the  extension  of  Executive  authority." 


val,  then  Prime  Minister,  was  assassinated  as  |  Thoughts  so  eloquently  expressed  appeal  with 
he  entered  the  House  of  Commons.  In  the  first  I  subduing  power  to  every  patriotic  heart,  and 
two  instances,  the  design  was  to  murder  the  |  demonstrate  that  Webster,  if  here,  would  be 
commander-in-chief  of  England's  army  and  I  heard  raising  his  mighty  voice  against  the  ju- 


THE    CONSPIRACY  TRIAL. 


261 


risdiction  of  this  Commission — a  jurisdiction 
placed  upon  Executive  authority  alone.  But  it 
has  been  urged  that  martial  law  warrants  such 
a  commission,  and  that  such  law  prevails  here. 
The  doctrine  is  believed  to  be  alike  indefensible 
and  dangerous.  It  is  not,  however,  necessary 
to  inquire  whether  martial  law,  if  it  did  pre 
vail,  would  maintain  your  jurisdiction,  as  it 
does  not  prevail.  It  has  never  been  declared 
by  any  competent  authority,  and  the  civil  courts 
we  know  are  in  the  full  and  undisturbed  exer 
cise  of  all  their  functions.  We  learn,  and  the 
fact  is  doubtless  true,  that  one  of  the  parties, 
the  very  chief  of  the  alleged  conspiracy,  has 
been  indicted,  and  is  about  to  be  tried  before 
one  of  those  courts.  If  he,  the  alleged  head 
and  front  of  the  conspiracy,  is  to  be  and  can 
be  so  tried,  upon  what  ground  of  right,  of 
fairness,  or  of  policy  can  the  parties  who  are 
charged  to  have  been  his  mere  instruments  be 
deprived  of  the  same  mode  of  trial?  It  may 
be  said  that  in  acting  under  this  commission 
you  are  but  conforming  to  an  order  of  the 
President,  which  you  are  bound  to  obey.  Let 
me  examine  this  for  a  moment.  If  that  order 
merely  authorizes  you  to  investigate  the  cases 
and  report  the  facts  to  him  and  not  to  pro 
nounce  a  judgment,  and  is  to  that  extent  legal, 
then  it  is  because  the  President  has  the  power 
himself,  without  such  a  proceeding,  to  punish 
the  crime,  and  has  only  invoked  your  assist 
ance  to  enable  him  to  do  it  the  more  justly. 
Can  this  be  so?  Can  it  be  that  the  life  of  a 
citizen,  however  humble,  be  he  soldier  or  not, 
depends  in  any  case  on  the  mere  will  of  the 
President?  And  yet  it  does,  if  the  doctrine  be 
sound.  What  more  dangerous  one  can  be  im 
agined?  Crime  is  denned  by  law,  and  is  to  be 
tried  and  punished  under  the  law.  What  is 
murder,  treason,  or  conspiracy,  and  what  is 
admissible  evidence  to  prove  either,  are  all 
legal  questions,  and  many  of  them,  at  times, 
difficult  of  correct  solution.  What  the  facts 
are  may  also  present  difficult  inquiries.  To 
pass  upon  the  first,  the  Constitution  provides 
courts  consisting  of  judges  selected  for  legal 
knowledge,  and  made  independent  of  Execu 
tive  power.  Military  judges  are  not  so  selec 
ted,  and  so  far  from  being  independent,  are 
absolutely  dependent  on  such  power.  To  pass 
upon  the  latter,  it  provides  juries  as  being  not 
likely  to  "partake  of  the  wishes  and  opinions 
of  the  Government."  But  if  your  function  is 
only  to  act  as  aids  to  the  President,  to  enable* 
him  to  exercise  his  function  of  punishment, 
arid  as  he  is  under  no  obligation  by  any  law  to 
call  for  such  aid,  he  may  punish  upon  his  own 
unassisted  judgment,  and  without  even  the 
form  of  a  trial.  In  conclusion,  then,  gentle 
men,  I  submit  that  your  responsibility,  what 
ever  that  be,  for  error,  in  a  proceeding  like 
this,  can  find  no  protection  in  Presidential 
authority.  Whatever  it  be,  it  grows  out  of  the 
laws,  and  may,  through  the  laws,  be  enforced. 
I  suggested  in  the  outset  of  these  remarks  that 
that  responsibility  in  one  contingency  may  be 
momentous.  I  recur  to  it  again,  disclaiming, 
as  I  did  at  first,  the  wish  or  hope  that  it  would 
cause  you  to  be  wanting  in  a  single  particular 
of  what  you  may  believe  to  be  your  duty,  but 


to  obtain  your  best  and  most  matured  judg 
ment.  The  wish  and  hope  disclaimed  would  be 
alike  idle  and  discourteous;  and  I  trust  the 
Commission  will  do  me  the  justice  to  believe 
that  I  am  incapable  of  falling  into  cither 
fault. 

Responsibility  to  personal  danger  can  never 
alarm  soldiers  who  have  faced,  and  will  ever 
be  willing  in  their  country's  defense  to  face, 

[death    on   the  battle-field.     But   ther,e  is  a  re 
sponsibility  that  every  gentleman,  be  he  soldier 

I  or  citizen,  will  constantly  hold  before  him, 
and  make  him  ponder — responsibility  to  the 
Constitution  and  laws  of  his  counti-y  and  an 
intelligent  public  opinion — and  prevent  his 
doing  any  thing  knowingly  that  can  justly  sub 
ject  him  to  the  censure  of  either.  I  have  said 
that  your  responsibility  is  great.  If  the  com 
mission  under  which  you  act  is  void  and  confers 
no  authority,  whatever  you  may  do  may  in 
volve  the  most  serious  personal  liability.  Cases 
have  occurred  that  prove  this.  It  is  sufficient 
to  refer  to  one.  Joseph  Wall,  at  the  time  the 
offense  charged  against  him  was  committed, 
was  Governor  and  commander  of  the  garrison 
of  Goree,  a  dependency  of  England,  in  Africa. 
The  indictment  was  for  the  murder  of  Benja 
min  Armstrong,  and  the  trial  was  had  in  Jan 
uary,  1802,  before  a  special  court,  consisting 
of  Sir  Archibald  McDonald,  Chief  Baron  of 
the  Exchequer;  Lawrence,  of  the  King's 
Bench,  and  Rocke,  of  the  Common  Pleas.  The 
prosecution  was  conducted  by  Law,  then  Attor 
ney  General,  afterward  Lord  Ellenborough. 
The  crime  was  committed  in  1782,  and  under  a 
military  order  of  the  accused,  and  the  sentence 
of  a  regimental  court-martial.  The  defense 
relied  upon  was,  that  at  the  time  the  garrison 
was  in  a  state  of  mutiny,  and  that  the  deceased 
took  a  prominent  part  in  it;  that,  because  of 
the  mutiny,  the  order  for  the  court-martial  was 
made,  and  that  the  punishment  which  was  in 
flicted  and  said  to  have  caused  the  death,  was 
under  its  sentence.  The  offense  was  purely  a 
military  one,  and  belonged  to  the  jurisdiction 
of  a  military  court,  if  the  facts  relied  upon  by 
the  accused  were  true,  and  its  judgment  consti 
tuted  a  valid  defense.  The  court,  however, 
charged  the  jury,  that  if  they  found  that  there 
was  no  mutiny  to  justify  such  a  court-martial 
or  its  sentence,  they  were  void,  and  furnished 
no  defense  whatever.  The  jury  so  finding, 
found  the  accused  guilty,  and  he  was  soon  after 
executed.  28  St.  Tr.,  61,  178.  The  application 
of  the  principle  of  this  case  to  the  question  I 
have  considered  is  obvious.  In.  that  instance 
want  of  jurisdiction  in  the  court-martial  was 
held  to  be  fatal  to  its  judgment  as  a  defense  for 
the  death  that  ensued  under  it.  In  this,  if  the 
Commission  has  no  jurisdiction,  its  judgment 
for  the  same  reason  will  be  of  no  avail,  either 
to  Judges,  Secretary  of  War,  or  President,  if 
either  shall  be  called  to  a  responsibility  for 
what  may  be  done  under  it.  Again,  upon  the 
point  of  jurisdiction,  I  beg  leave  to  add  that 
the  opinion  I  have  endeavored  to  maintain  is 
believed  to  be  the  almost  unanimous  opinion 
of  the  profession,  and  certainly  is  of  every 
judge  or  court  who  has  expressed  any. 
In  Mar}  land,  where  such  commissions  have 


262 


ARGUMENT    OF    REVERDY   JOHNSON. 


been  and  are  held,  the  Judge  of  the  Criminal  j  "Grave  doubts,  to  say  the  least,  exist  in  the 
Court  of  Baltimore  recently  made  it  a  matter  I  minds  of  intelligent  men  as  to  the  constitu- 
of  special  charge  to  the  grand  jury.  Judge  |  tional  right  of  the  recent  military  commis- 
Bond  told  them:  "It  has  come  to  my  knowl-lsions  at  Washington  to  sit  in  judgment  upon 


edge  that  here,  where  the  United  States  Court, 
presided  over  by  Chief  Justice  Chase,  has  al 
ways  been  unimpeded,  and  where  the  Marshal 
of  the  United  States,  appointed  by  the  Presi 
dent,  selects  the  jurors,  irresponsible  and  un 
lawful  military  commissions  attempt,  to  exercise 
criminal  jurisdiction  over  citizens  of  this 
State,  not  in  the  military  or  naval  service  of 


the  persons  now  on  trial  for  their  lives  before 
that  tribunal.  Thoughtful  men  feel  aggrieved 
that  such  a  commission  should  be  established 
in  this  free  country,  when  the  war  is  over,  and 
when  the  common-law  courts  are  open  and 
accessible  to  administer  justice,  according  to 
law,  without  fear  or  favor. 

What  remedy  exists?     None  whatever,  ex- 


the  United    States,  nor  in  the   militia,  who   are  I  cept  through  the  power  of  public  sentiment. 
charged  with  offenses  either  not   known  to  the  |      "As  citizens  of  this  free  country,  having  an 


law,  or  with  crimes  for  which  the  mode  of  trial 
and  punishment  are  provided  by  statute  in  the 
courts  of  the  land.  That  it  is  not  done  by  the 
paramount  authority  of  the  United  States,  your 
attention  is  directed  to  article  5,  of  the  Con 
stitution  of  the  United  States,  which  says:  'No 
person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  present 
ment  or  indictment  of  a  grand  jury,  except  in 
cases  .arising  in  the  land  or  naval  forces,  or  in 
the  militia  when  in  actual  service  in  time  of 
war  or  public  danger.'"  Such  persons  exercising 
such  unlawful  jurisdiction  are  liable  to  indictment 
by  you,  as  well  as  responsible  in  civil  actions  to  the 
parties.  In  New  York,  Judge  Peckham,  of1  the 
Supreme  Court  of  that  State,  and  speaking  for 
the  whole  bench,  charged  the  grand  jury  as 
follows  : 

"  The  Constitution  of  the  United  States,  Ar 
ticle  5,  of  the  amendments,  declares  that  'no 
person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  present 
ment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger.' 

"Article  6  declares  that,  'in  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial.' 

"Article  3,  section  2,  declares  that  'the  trial 
of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury,'  etc. 

"These  provisions  were  made  for  occasions 
of  great  excitement,  no  matter  from  what 
cause,  when  passion,  rather  than  reason,  might 
prevail. 

"In  ordinary  times,  there  would  be  no  occa 
sion  for  such  guards,  as  there  would  be  no  dis 
position  to  depart  from  the  usual  and  estab 
lished  modes  of  trial. 

"A  great  crime  has  lately  been  committed 
that  has  shocked  the  civilized  world.  Every 
right-minded  man  desires  the  punishment  of 
the  criminals,  but  he  desires  that  punishment 
to  be  administered  according  to  law,  and 
through  the  judicial  tribunals  of  the  country. 
No  stai'-chamber  court,  no  secret  inquisition, 
in  this  nineteenth  century,  can  ever  be  made 
acceptable  to  the  American  mind. 

If   none  but  the  guilty  could    be  accused, 


xecution 


then   no  trial  could    be  necessary 
should  follow  accusation. 

"It  is  almost  as  necessary  that  the  public 
should  have  undoubted  faith  in  the  purity 
of  criminal  justice,  as  it  is  that  justice  in 
fact  be  administered  with  integrity. 


interest  in  its  prosperity  and  good  name,  we 
may,  as  1  desire  to  do,  in  all  courtesy  and 
kindness,  and  with  all  proper  respect,  express 
our  disapprobation  of  this  course  in  our 
rulers  in  Washington. 

"The  unanimity  with  which  the  leading 
press  of  our  land  has  condemned  this  mode 
of  trial,  ought  to  be  gratifying  to  every  patriot. 

"Every  citizen  is  interested  in  the  preserva 
tion,  in  their  purity,  of  the  institutions  of  his 
country;  and  you,  gentlemen,  may  make  such 
presentment  on  this  subject,  if  any,  as  your 
judgment  may  dictate." 

The  reputation  of  both  of  these  judges  is 
well  and  favorably  known,  and  their  authority 
is  entitled  to  the  greatest  deference. 

Even  in  France,  during  the  consulship  of 
Napoleon,  the  institution  of  a  military  com 
mission  for  the  trial  of  the  Prince  Due  d'En- 
hien,  for  alleged  conspiracy  against  his  life, 
was,  to  the  irreparable  injury  of  his  reputa 
tion,  ordered  by  Napoleon.  The  trial  was  had, 
and  the  Prince  was  at  once  convicted  and  ex 
ecuted.  It  brought  upon  Napoleon  the  con 
demnation  of  the  world,  and  is  one  of  the 
blackest  spots  in  his  character.  The  case  of 
the  Duke,  says  the  eminent  historian  of  the 
Consulate  and  the  Empire,  furnished  Napo 
leon  "a  happy  opportunity  of  saving  his  glory 
from  a  stain,"  which  he  lost,  and  adds,  with 
philosophic  truth,  that  it  was  "a  deplorable 
consequence  of  violating  the  ordinary  forms  of 
justice"  and  further  adds,  "  to  defend  social 
order  by  conforming  to  the  strict  rules  and  forms 
of  justice,  without  allowing  any  feeling  of  re 
venge  to  operate,  is  the  great  lesson  to  be 
drawn  from  these  tragical  events."  Thier's 
History,  etc.,  4  vol.,  318,  322. 

Upon  the  whole,  then,  I  think  I  shall  not  be 
considered  obtrusive  if  I  again  invoke  the 
Court  to  weigh  well  all  that  I  have  thought,  it 
my  duty  to  urge  upon  them.  I  feel  the  duty 
to  be  upon  me  as  a  citizen  sworn  to  do  what  I 
can  to  preserve  the  Constitution,  and  the  prin 
ciples  on  which  it  reposes.  As  counsel  of  one 
of  the  parties,  I  should  esteem  myself  dishon 
ored  if  I  attempted  to  rescue  my  client  from  a 
proper  trial  for  the  offense  charged  against 
her,  by  denying  the  jurisdiction  of  the  Com 
mission,  upon  grounds  that  I  did  not  con 
scientiously  believe  to  be  sound.  And,  in 
what  I  have  done,  I  have  not  more  had  in 
view  the  defense  of  Mrs.  Surratt,  than  of  the 
Constitution  and  the  laws.  In  my  view,  in 
this  respect,  her  cause  is  the  cause  of  every 
citizen.  And  let  it  not  be  supposed  that  I  am 


THE    CONSPIRACY   TRIAL. 


262 


seeking  to  secure  impunity  to  anyone  who  |  impossible  to  believe.     Such  a  belief  can  only 


may  have  been  guilty  of  the  horrid  crimes  of 
the  night  of  the  14th  of  April.  Over  these  the 
civil  courts  of  this  District  have  ample  juris 
diction,  and  will  faithfully  exercise  it  if  the 
cases  are  remitted  to  them,  and  guilt  is  le 
gally  established,  and  will  surely  award  the 
punishment  known  to  the  laws.  God  forbid 
that  such  crimes  should  go  unpunished  !  In 
the  black  catalogue  of  offenses,  these  will  for 
ever  be  esteemed  the  dai-kest  and  deepest  ever 
committed  by  sinning  man.  And,  in  common 
with  the  civilized  world,  do  I  wish  that  every 
legal  punishment  may  be  legally  inflicted 
upon  all  who  participated  in  them. 

A  word  more,  gentlemen,  and,  thanking  you 
for  your  kind  attention,  I  shall  have  done.  As 
you  have  discovered,  I  have  not  remarked  on 
the  evidence  in  the  case  of  Mrs.  Surratt,  nor  is 
it  my  purpose ;  but  it  is  proper  that  I  refer  to 
her  case,  in  particular,  for  a  single  moment. 
That  a  woman,  well  educated,  and,  as  far  as 
we  can  judge  from  all  her  past  life,  as  we  have 
it  in  evidence,  a  devout  Christian,  ever  kind, 
affectionate  and  charitable,  with  no  motive 
disclosed  to  us  that  could  have  caused  a  total 
change  in  her  very  nature,  could  have  partici 
pated  in  the  crimes  in  question  it  is  almost 


be  forced  upon  a  reasonable,  unsuspecting, 
unprejudiced  mind,  by  direct  and  uncontra- 
dicted  evidence,  coming  from  pure  and  per 
fectly  unsuspected  sources.  Have  we  these? 
Is  the  evidence  uncontradicted  ?  Are  the  two 
witnesses,  Weichmann  and  Lloyd,  pure  and 
unsuspected?  Of  the  particulars  of  their  evi 
dence  I  say  nothing.  They  will  be  brought 
before  you  by  my  associates.  But^  this  con 
clusion  in  regard  to  these  witnesses  must  be, 
in  the  minds  of  the  Court,  and  is  certainly 
strongly  impressed  upon  my  own,  that,  if  the 
facts  which  they  themselves  state  as  to  their 
connection  and  intimacy  with  Booth  and 
Payne  are  true,  their  knowledge  of  the  pur 
pose  to  commit  the  crimes,  and  their  partici 
pation  in  them,  is  much  more  satisfactorily 
established  than  the  alleged  knowledge  and 
participation  of  Mrs.  Surratt.  As  far,  gentle 
men,  as  I  am  concerned,  her  case  is  now  in 
your  hands.  REVERDY  JOHNSON. 

JUNE  16,  1865. 

As  associate  counsel  for  Mrs.  Mary  E.  Sur 
ratt,  we  concur  in  the  above. 

FREDERICK  A.  AIKEN, 
JOHN  W.  CLAMPITT 


ON    THE    PLEA    TO    THE 


JURISDICTION  OF  THE  MILITARY  COMMISSION, 


THOMAS    EWING,    JR. 


JUNE  23,  1865. 

May  it  please  the  Court:  The  first  great  ques 
tion — a  question  that  meets  us  at  the  thres 
hold — is,  do*you,  gentlemen,  constitute  a  court, 
and  have  you  jurisdiction,  as  a  court,  of  the 
persons  accused,  and  the  crimes  with  which 
they  are  charged?  If  you  have  such  jurisdic 
tion,  it  must  have  been  conferred  by  the  Con 
stitution,  or  some  law  consistent  with  it,  and 
carrying  out  its  provisions. 

1.  The  5th   article   of  the   Constitution  de 
clares  : 

"That  the  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  Congress  may, 
from  time  to  time,  ordain  and  establish;  "  and 
that  "  the  judges  of  both  Supreme  and  inferior 
courts  shall  hold  their  offices  during  good  be 
havior." 

Under  this  provision  of  the  Constitution, 
none  but  courts  ordained  or  established  by 
Congress  can  exercise  judicial  power,  and 
those  courts  must  be  composed  of  judges  who 
hold  their  offices  during  good  behavior.  They 
must  be  independent  judges,  free  from  the  in 
fluence  of  Executive  power.  Congress  has  not 
"ordained  and  established"  you  a  court,  or 
authorized  you  to  call  these  parties  before  you 
and  sit  upon  their  trial,  and  you  are  not 
"  judges  "  who  hold  your  offices  during  good 
behavior.  You  are,  therefore,  no  court  under 
the  Constitution,  and  have  no  jurisdiction  in 
these  cases,  unless  you  obtain  it  from  some 
other  source,  which  overrules  this  constitu 
tional  provision. 

The  President  can  not  confer  judicial  power 
upon  you,  for  he  has  it  not.  The  executive,  not 
the  judicial,  power  of  the  United  States  is 
vested  in  him.  His  mandate,  no  matter  to 
what  man  or  body  of  men  addressed,  to  try, 
and,  if  convicted,  to  sentence  to  death  a  citi 
zen,  not  of  the  naval  or  military  forces  of  the 
United  States,  carries  with  it  no  authority 
which  could  be  pleaded  in  justification  of  the 
sentence.  It  were  no  better  than  the  simple 
mandate  to  take  A  B,  C  D,  E  F,  and  G.  II,  and 
put  them  to  death. 

2.  The  President,  under   the   5th    amendment 
to  the  Constitution,  may  constitute  courts  pur 
suant  to  the  Articles   of  War,  but  he  can  not 
give  them  jurisdiction  over  citizens.     This  ar 
ticle  provides  that  "no  person  shall  be  held  to 
answer  for  a  capital  or  otherwise  infamous 

204 


crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  navalforces,  or  in  the  militia  when  in  actual 
service  In  time  of  war  or  public  danger. 

The  presentment  and  indictment  of  a  grand 
jury  is  a  thing  unknown  and  inconsistent 
with  your  commission.  You  have  nothing  of 
the  kind.  Neither  you  nor  the  law  officer*, 
who  control  your  proceedings  seem  to  have 
thought  of  any  such  thing.  These  defendants 
did  not  and  do  not  belong  to  the  "  land  or  na 
val  forces"  of  the  United  States — nor  were 
they  "  militia,  in  time  of  war  or  public  danger,  in 
actual  service"  The  Constitution,  therefore,  in 
the  article  above  cited,  expressly  says:  You 
shall  not  hold  them  to  answer  to  any  of  the  cap 
ital  and  infamous  crimes  with  which  they  are 
charged. 

Is  not  a  single,  direct,  constitutional  prohi 
bition,  forbidding  you  to  take  jurisdiction  in 
these  cases,  sufficient?  If  it  be  not,  read  the 
provision  of  the  3d  section  of  the  3d  article. 
It  is  as  follows : 

"  The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury." 

But  lest,  this  should  not  be  enough,  in  thei;- 
anxious  care  to  provide  against  the  abuses 
from  which  England  had  recently  escaped,  and 
which  were  still  fresh  in  the  memories  of 
men — as  the  Star  Chamber,  the  High  Commis 
sion  Courts,  and  their  attendant  enormities — 
the  framers  of  the  Constitution  further  pro 
vided,  in  the  6th  amendment,  that — 

"In  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jury  of  the  State  and  dis 
trict  wherein  the  crime  shall  have  been  com 
mitted." 

Now,  whence,  and  what,  is  the  authority 
which  overrules  these  distinct  constitutional 
prohibitions,  and  empowers  you  to  hold  these 
citizens  to  answer,  despite  the  mandates  of  the 
Constitution  forbidding  you? 

Congress  has  not  attempted  to  grant  you  the 
power;  Congress  could  not  grant  it.  A  law 
to  that  effect,  against  the  constitutional  prohi 
bition,  would  be  merely  void.  Congress  has 
authorized  the  suspension  of  the  writ  of  ha 
beas  corpus,  as  the  Constitution  permits  (Art,  1, 
Sec.  9) ;  but  the  Constitution  does  not  thereby 
permit  the  military  to  try,  nor  has  Congress 
attempted  to  deliver  over  to  the  military  for 
trial,  judgment,  and  execution,  American  citizens. 
not  in  the  land  or  naval  forces  or  in  the  rnili- 


THE    CONSPIRACY   TRIAL. 


265 


tia  in  actual  service,  when  accused  of  crime. 
Congress  and  the  President,  the  law-making 
power,  were  incompetent  to  this,  and  have  not 
attempted  it.  Whence,  then,  comes  the  dis 
pensation  with  the  constitutional  prohibi 
tion?  Where  and  whence  is  the  affirmative 
grant  of  jurisdiction  under  which  you  pro 
pose  to  try,  and,  if  convicted,  pass  sentence 
upon  these  men,  citizens  of  the  United  States — 
not  soldiers,  not  militia-men — but  citizens,  en 
gaged  in  the  ordinary  avocations  of  life?  I 
am  not  permitted  to  know.  Congress  has  not 
in  any  form  attempted  to  violate  or  impair  the 
Constitution.  They  have  suspended  the  writ 
of  habeas  corpus;  this  goes  to  imprisonment — 
not  trial,  conviction,  or  punishment.  This  is 
the  extreme  limit  to  which  the  law-making 
power  is  permitted  to  go,  and  it  is  only  in 
cases  of  strong  necessity  that  this  is  permit 
ted.  Congress  has  repealed  so  much  of  the 
102d  section  of  the  act  of  September  24,  1739, 
as  required  that  in  all  capital  cases  twelve 
petit  jurors  should  be  summoned  from  the 
county  in  which  the  offense  was  committed 
(par.  221,  sec.  102,  repealed  July  16,  18G2,  page 
1164,  sec.  22),  but  has  preserved  all  other  legal 
provisions  made  in  aid  of  the  Constitution  to 
protect  citizens  from  the  oppression  of  unreg 
ulated  and  unrestrained  Executive  power. 
The  accused  shall  be  tried  upon  an  indictment 
or  presentment  of  a  grand  jury.  If  two  or 
more  crimes  of  a  like  nature  be  charged,  they 
must  be  set  forth  in  separate  counts.  (Act  of 
February  26,  1853,  sec.  117.)  You  may  not 
compel  an  accused  to  answer  to  a  loose  story 
or  accusation  of  several  crimes  in  one  count.  If 
the  crime  charged  be  treason,  which  this  paper 
approaches  more  nearly  than  anything  else, 
the  accused  shall  have  a  copy  of  the  indict 
ment,  and  a  list  of  the  jury,  and  of  all  the 
witnesses  to  be  produced  on  the  trial  for  prov 
ing  the  said  indictment  (mentioning  the 
names  and  places  of  abode  of  such  witnesses 
and  jurors),  delivered  unto  him  at  least  three 
entire  days  before  he  shall  be  tried  for  the 
same;  and  in  other  capital  offenses,  shall  have 
such  copy  of  indictment  and  list  of  the  jury 
two  entire  days,  at  least,  before  the  trial.  (Act 
of  April  30,  1790,  sec.  24,  p.  221.) 

Against  this  array  of  constitutional  and 
legal  prohibition  and  regulation,  I  know  of 
nothing  that  can  be  adduced,  except,  perhaps, 
an  Executive  order  authorizing,*by  direct  man 
date  or  implication,  the  thing  to  be  done  which 
the  Constitution  forbids  you  to  do.  If  you  be 
proceeding  in  obedience  to  such  Executive 
mandate,  and  if  that  give  jurisdiction,  still 
you  proceed  in  a  form  and  manner  which  the 
Constitution  and  law  expressly  forbid.  If  my 
clients  be  charged  with  treason  or  murder  (and 
I  conjecture  they  are  charged  with  murder,  at 
least),  they  must  be  proved  to  have  been  pres 
ent,  aiding  in  or  actually  commuting  the  overt  act,  or 
alleged  murder.  For  either  of  these  the  punish 
ment  on  conviction  is  death.  The  Judge  Ad 
vocate  has  been  unable,  in  the  cases  of  Arnold 
and  Mudd,  to  present  any  evidence  remotely  ap 
proaching  that  prescribed  by  the  Constitution 
and  the  laws  as  the  condition  of  conviction; 
and  yet  I  am  led  to  infer  that  he  will  claim  a 


conviction  of  one  or  both  of  them  on  the 
proof  presented.  What  is  the  profession,  on 
this  and  on  the  other  side  of  the  Atlantic,  to 
think  of  such  administration  of  criminal  ju 
risprudence? — for  this,  the  first  of  our  State 
trials,  will  be  read  with  avidity  everywhere. 
I  ask  the  officers  of  the  Government  to  think 
of  this  carefully  now,  lest  two  or  three  years 
hence  they  may  not  like  to  hear  it  named. 

But  we  may  mistake  the  whole  case  as  it  pre 
sents  itself  to  the  mind  of  the  Judge  Advocate. 
We  are  here  as  counsel  for  the  accused,  but  are 
not  allowed  to  know  explicitly  with  what 
crime,  defined  by  law,  any  one  of  them  is  charged, 
or  what  we  are  here  to  defend.  No  crime 
known  to  the  law  is  legally  charged  in  the 
paper  which  is  here  substituted  for  an  in 
dictment.  In  this  paper  three  distinct  crimes 
are  strongly  hinted  at  in  a  single  charge,  to 
each  of  which  different  rules"  of  law  and  evi 
dence  are  applicable,  and  different  penalties 
are  attached;  and  I  had  wished  to  know,  so 
that  I  might  shape  the  defense  of  my  clients 
accordingly,  for  which  alleged  or  intimated 
crime  any  one,  or  each,  or  all  of  them,  are  to 
be  tried.  The  information  has  been  denied  us. 
The  Judge  Advocate  puts  these  parties  on 
trial,  and  refuses  (in  the  most  courteous  terms) 
to  advise  their  counsel  on  what  law  or  author 
ity  he  rests  his  claim  to  jurisdiction  ;  of  what 
crime  he  intends  to  convict  each  or  any  of  the 
defendants  ;  in  what  laws  the  crimes  are  de 
fined  and  their  punishments  prescribed  ;  or  on 
what  proof,  out  of  the  wild  jungle  of  testi 
mony,  he  intends  to  rest  his  claim  to  convic 
tions. 

But  it  has  been  said,  and  will  perhaps  be 
said  again,  in  support  of  this  jurisdiction, 
that  the  necessities  of  war  justify  it — and 
"  silent  leges  inter  arma."  So  said  the  Roman 
orator  when  Rome  had  become  a  military  des 
potism,  and  ceased  forever  to  have  liberty,  and 
when  she  retained  law  only  as  the  gift  or  by 
the  permission  of  the  ruling  despot.  "  The 
law  is  silent  amidarms.n  Yes,  it  is  so  in  a  con 
quered  country,  when  the  victorious  general 
chooses  to  put  the  law  to  silence  ;  for  he  is  an 
autocrat,  and  may,  if  he  chooses,  be  a  despot. 
But  how  extravagant  is  the  pretense  that  a 
bold,  and  spirited,  and  patriotic  people,  be 
cause  they  rise  in  their  majesty  and  send  forth 
conquering  armies  to  rescue  the  republic, 
thereby  forfeit  all  constitutional  and  legal  pro 
tection  of  life,  liberty,  and  property  ! 

Cases  have  often  arisen,  in  which  robber 
bands,  whose  vocation  is  piracy  on  the  high 
seas,  or  promiscuous  robbery  and  murder  on 
land — hostes  humani  generis — may  be  lawfully 
put  to  the  sword  without  quarter,  in  battle,  or 
hung  on  the  yard-arm,  or  otherwise  put  to 
death,  when'  captured,  according  to  tlje  neces 
sities  of  the  case,  without  trial  or  other  con 
viction,  except  the  knowledge  of  the  command 
ing  general  that  they  were  taken  flagrante  bel- 
lo,  and  that  they  are  pirates  or  land  robbers. 
A  military  court  maybe  called,  but  it  is  advisory 
merely  ;  the  general  acts,  condemns,  and  exe 
cutes.  But  the  Constitution  of  the  United 
States  has  nothing  to  do  with  this.  It  does 
not  protect  pirates  or  marauders  who  are  ene- 


266 


ARGUMENT    OF   THOMAS   E  \VIXG-,    JR. 


rnies  of  the  human  race;  or  spies,  or  even  ene 
mies  taken  in  battle.  It  protects,  not  bellig 
erent  enemies,  but  only  citizens  and  those 
persons  not  citizens  who,  in  civil  life,  seek 
and  claim  its  protection,  or  aliens  who  are  en 
gaged  in  its  military  or  other  service.  The 
power  of  the  commanding  general  over  these 
classes  is  restrained  only  by  the  usages  of  war 
among  civilized  nations.  But  these  defend 
ants  are  not  charged  as  spies  or  pirates,  or 
armed  and  organized  marauders,  or  enemies 
captured  in  war,  or  persons  in  the  land  or  na 
val  service  of  the  United  States.  They  belong 
to  none  of  these  classes,  over  whom  military 
discretion  or  martial  law  extends,  unless  they 
extend  over  and  embrace  all  the  people  of  the 
United  States. 

But  if  the  jurisdiction  in  this  case  exist, 
whether  by  law  or  by  the  power  of  arms,  I  re 
gret  that  a  Military  Commission  should  be 
charged  with  the  trial  of  these  causes.  The 
crimes  are,  as  far  as  hinted  at  and  written  about 
in  the  charge  and  specifications,  all  cognizable 
in  our  civil  courts.  Those  courts  are  open,  un 
obstructed,  without  a  single  impediment  to 
the  full  and  perfect  administration  of  justice — 
ready  and  prompt,  as  they  always  are,  to  per 
form  the  high  duties  which  the  well-known 
principles  of  law  under  the  Constitution  de 
volve  on  them.  What  good  reason  can  be 
given  in  a  case  like  this,  to  a  people  jealous 
of  their  rights,  for  a  resort  here  and  now  to 
military  trials  and  military  executions  ?  We 
are  at  the  advent  of  a  new,  and  I  trust  a  suc 
cessful,  Administration.  A  taint  such  as 
this — namely,  the  needless  violation  of  the 
constitutional  rights  of  the  citizen — ought  not 
to  be  permitted  to  attach  to  and  infect  it.  The 
jurisdiction  of  this  Commission  has  to  be 
sought  dehors  the  Constitution,  and  against 
its  express  prohibition.  It  is,  therefore,  at 
least  of  doubtful  validity.  If  that  jurisdic 
tion  do  not  exist ;  if  the  doubt  be  resolved 
against  it  by  our  judicial  tribunals,  when  the 
law  shall  again  speak,  the  form  of  trial  by 
this  unauthorized  Commission  can  not  be 
pleaded  in  justification  of  the  seizure  of  prop 
erty  or  the  arrest  of  person,  much  less  the  in 
fliction  of  the  death  penalty.  In  that  event, 
however  fully  the  recorded  evidence  may  sus 
tain  your  findings,  however  moderate  may 
seem  your  sentences,  however  favorable  to  the 
accused  your  rulings  on  the  evidence,  your 
sentence  will  be  held  in  law  no  better  than  the 
rulings  of  Judge  Lynch's  courts  in  the  ad 
ministration  of  lynch  law.  When  the  party 
now  in  power  falls — as  in  the  vicissitudes  of 
things  it  must  one  day  fall,  and  all  the  sooner 
for  a  reckless  use  of  its  present  power — so  it 
will  be  viewed  by  that  party  which  succeeds 
it.  This  is  to  be  expected,  and,  indeed,  hoped; 
but  if,  unfortunately,  this  proceeding  be  then 
accepted  and  recorded  as  a  precedent,  we  may 
have  fastened  on  us  a  military  despotism.  If 
we  concede  that  the  exercise  of  jurisdiction 
claimed  is  now  necessary,  and  for  the  best  pos 
sible  object,  before  we  consent  that  it  stand  as 
a  precedent  in  our  jurisprudence,  we  should 
recall  to  mind  the  statesmanlike  and  almost 
prophetic  remarks  of  Julius  Caesar,  in  the  Ro 


man  Senate,  on  the  trial  of  Lentulus  and  his 
accomplices  in  Catiline's  conspiracy:  " Abuses 
of  ten  grow  from  precedents  good  in  principle;  but 
when  the  power  falls  into  hands  of  men  less  en 
lightened  or  less  honest,  a  just  and  reasonable  pre 
cedent  receives  an  application  contrary  to  justice 
and  reason."  It  is  to  be  remembered  that  crim 
inal  trials  involving  capital  punishment  \vere 
not,  then  within  the  competency  of  the  Roman 
Senate;  and  neither  the  Consul  nor  the  Sen 
ate,  nor  both  of  them,  had  the  right  to  con 
demn  a  Roman  citizen  without  the  concurrence 
of  the  people.* 

If  you  believe  you  possess  the  power  of  life 
and  death  over  the  citizens  of  the  United 
States  in  States  where  the  regular  tribunals 
can  be  safely  appealed  to,  still,  for  the  sake  of 
our  common  country  and  its  cherished  institu 
tions,  do  not  press  thatpower  too  far.  Our  ju 
dicial  tribunals,  at  some  future  day,  I  have  no 
doubt,  will  be  again  in  the  full  exercise  of 
their  constituted  powers,  and  may  think,  as  a 
large  proportion  of  the  legal  profession  think 
now,  that  your  jurisdiction  in  these  cases  is  an 
unwarranted  assumption ;  and  they  may  treat 
the  judgment  which  you  pronounce,  and  the 
entence  you  cause  to  be  executed,  as  your 
own  unauthorized  acts. 

This  assumption  of  jurisdiction,  or  this  use 
of  a  legitimate  jurisdiction,  not  created  by  law, 
and  not  known  to  the  law  or  to  legal  men,  has 
not  for  its  sanction  even  the  plea  of  necessity. 
It  may  be  convenient.  Conviction  may  be  easier 
and  more  certain  in  this -Military  Commission 
than  in  our  constitutional  courts.  Inexperi 
enced  as  most  of  you  are  in  judicial  investi 
gations,  you  can  admit  evidence  which  the 
courts  would  reject,  and  reject  what  they  would 
admit,  and  you  may  convict  and  sentence  on 
evidence  which  those  courts  would  hold  to  be 
wholly  insufficient.  Means,  too,  may  be  re 
sorted  to  by  detectives,  acting  under  promise 
or  hope  of  reward,  and  operating  on  the  fears 
or  the  cupidity  of  witnesses,  to  obtain  and  in 
troduce  evidence,  which  can  not  be  detected 
and  exposed  in  this  military  trial,  but  could 
be  readily  in  the  free,  but  guarded,  course  of 
investigation  before  our  regular  judicial  tribu 
nals.  The  Judge  Advocate,  with  whom  chiefly 
rests  the  fate  of  these  citizens,  is  learned  in 
the  law,  but  from  his  position  he  can  not  be  an 
impartial  judge,  unless  he  be  more  than  man. 
He  is  the  PROSECUTOR,  in  the  most  extended 
sense  of  the  word.  As  in  duty  bound,  before 
this  Court  was  called,  he  received  the  reports 
of  detectives,  pro-examined  the  witnesses,  pre 
pared  and  officially  signed  the  charges,  and  as 
principal  counsel  for  the  Government,  con 
trolled  on  the  trial  the  presentation,  admis 
sion  and  rejection  of  evidence.  In  our  courts 
of  law,  a  lawyer  who  has  heard  his  client's 
story,  if  transferred  from  the  bar  to  the  bench, 
may  not  sit  in  the  trial  of  the  cause,  lest  the 
ermine  be  sullied  through  the  partiality  of 
counsel.  This  is  no  mere  theoretical  objec 
tion — for  the  union  of  prosecutor  and  judge 
works  practical  injustice  to  the  accused.  The 


*  Cicero,  who  was  Consul,  Cato,  Silanus,  and  others 
of  their  associates  in  the  Senate,  were  afterward  tried  for 
the  murder  of  the  conspirators,  convicted,  and  banished. 


THE    CONSPIRACY   TRIAL. 


267 


Judge  Advocate  controls  the  admission  and 
rejection  of  evidence — knows  what  will  aid 
and  what  will  injure  the  case  of  the  prosecu 
tion,  and  inclines  favorably  to  the  one,  and 
unfavorably  to  the  other.  The  defense  is  met 
with  a  bias  of  feeling  and  opinion  on  the  part 
of  the  judge  who  controls  the  proceedings  of 
the  Court,  and  on  whom,  in  great  measure,  the 
fate  of  the  accused  depends,  which  morals  and 
law  alike  reject.  Let  it  not  be  supposed  I  cen 
sure  or  reflect  on  any  one,  for  I  do  not.  The 
wrong  suffered  by  the  parties  accused  has  its 
root  in  the  vice  of  this  system  of  trial,  which 
I  have  endeavored  to  expose. 

Because  our  Chief,  so  venerated  and  be 
loved  (and  no  one  venerated  and  loved  him 
more  than  I),  has  fallen  by  the  hand  of  a  ruth 
less  assassin,  it  ought  not  to  follow  that  the 
Constitution  and  law  should  be  violated  in 
punishing  men  suspected  of  having  compassed 


the  rebellion;  and  the  further  testimony 
(which  we  showed  was  utterly  fabulous)  that 
another  of  my  clients,  in  1863  or  1864,  enter 
tained  rebel  officers  and  soldiers,  and  corres 
ponded  with  rebels  in  Richmond.  As  if  to 
say  :  "What  matters  it  how  we  try,  or  whether 
we  legally  try  at  all,  provided  we  convict  and 
execute  men  who  have  been  associated  with, 
or  in  sympathy  with,  monsters  such  as  those?" 
Homer  makes  Achilles  immolate,  at  the  fune 
ral  pyre  of  Patroclus,  twelve  Trojan  captives, 
simply  because  they  were  Trojans,  and  because 
Patroclus  had  fallen  by  a  Trojan  hand.  If 
that  principle  of  judicial  action  be  adopted 
here,  it  were  surely  not  too  much  to  sacrifice 
to  the  manes  of  one  so  beloved  and  honored  as 
our  late  Chief  Magistrate  a  little  lot  of  rebel 
sympathizers,  because,  like  the  assassin,  some 
of  them,  at  some  time,  participated  in  the  re 
bellion,  or  gave  aid  and  comfort  to  rebels. 


his  death,  or  that  men  not  legally  found  guilty  If  this  course  of  reasoning  do  not  develop  the 
should  be  sacrificed  in  vengeance  as  vie- 1  object  of  that  strange  testimony,  I  know  not 
tiins  generally  because  of  the  crime.  j  how  to  read  it.  Indeed,  a  position  taken  by 

There    may    be    a    lurking  feeling    among  |  the  learned  Assistant  Judge  Advocate,  in  dis- 
men    which   tends    to    this  harshness   of   ret-  cussing  my  objection  to  the  part  of  that  evi- 


ribution,  regardless  of  the  innocence  of 
those  on  whom  vengeance  may  fall.  Tending 
to  this  feeling,  exciting  or  ministering  to  it, 
was  the  two  days'  testimony  which,  without 
other  apparent  point  or  purpose,  detailed  the 
horrors  of  the  Libby  Prison  ;  and  the  evidence 
that,  in  1861,  one  of  my  clients  took  part  in 


dence  which  relates  to  rny  clients,  goes  to 
this — and  even  beyond  it — namely,  that  parti 
cipation  in  the  rebellion  was  participation  in 
the  assassination,  and  that  the  rebellion  itself 
formed  part  of  the  conspiracy  for  which  these 
men  are  on  trial  here. 


DEFENSE  OF  DAYID  E.  HEROLD. 

BY 

FREDERICK   STONE,    ESQ. 


May  it  please  the  Court: 

At  the  earnest  request  of  the  widowed  mother 
and  estimable  sisters  of  the  accused,  I  have 
consented  to  act  as  his  counsel  in  the  case  now 
before  the  Court. 

It  is  a  source  of  some  embarrassment  to  the 
counsel  for  the  accused  that  the  Judge  Advo 
cate  General  has  seen  fit  not  to  open  this  case 
with  a  brief  statement  of  the  law  upon  which 
this  prosecution  is  founded.  It  would  have 
been  a  great,  and,  as  he  thinks,  proper  assist 
ance  to  the  accused  and  his  counsel  to  have 
known  with  more  accuracy  than  is  set  out  in 
the  charge,  the  special  offense  for  which  he  is 
arraigned.  In  the  absence  of  such  opening 
statement,  the  accused  can  only  discuss  the  law 
on  which  he  supposes  the  Judge  Advocate  to 
rely. 

While  the  counsel  for  the  accused  does  not, 
and  can  not,  concede  the  question  of  jurisdic 
tion,  it  is  not  proposed  by  him  to  discuss  the 
question  of  the  jurisdiction  of  this  Court  over 
the  accused  in  this  case,  except  so  far  as  may 
be  necessary  incidentally  in  discussing  the 
effect  of  General  Order  No.  141.  The  question 
of  the  general  jurisdiction  he  will  leave  in 
abler  hands. 

But,  supposing  this  Court  should  be  entirely 
satisfied  that  they  have  jurisdiction,  another, 
and,  as  the  counsel  for  the  accused  thinks,  a 
more  important  question  arises ;  and  that  ques 
tion  is  :  What  is  the  law  governing  the  several 
offenses  with  which  the  accused  stands  charged, 
and  what  is  the  law  prescribing  the  punish 
ment  thereof?  I  shall  first  consider  what  is 
the  law  governing  the  case  as  to  the  crime  and 
the  punishment,  upon  the  hypothesis  that  mar 
tial  law  generally  was  in  force  in  the  District 
of  Columbia  on  the  14th  of  April,  1865,  and 
still  so  continues  in  force;  and  I  shall,  in  the 
second  place,  consider  whether  martial  law  did, 
in  fact,  exist  within  the  District  of  Columbia 
on  the  14th  of  April,  and  does  now  exist,  and 
to  what  extent. 

In  time  of  peace,  the  civil  law  is  adminis 
tered  by  civil  tribunals,  ,whose  mode  of  pro 
cedure  and  jurisdiction  are  clearly  defined;  in 
time  of  war,  justice  is  administered  in  the  ene 
my^  country,  occupied  by  the  belligerent,  and 
also  in  that  part  of  the  belligerent's  own  coun 
try  Avhich  is  under  martial  law,  by  military 
268 


commissions,  according  to  a  system  of  juris 
prudence  sometimes  called  the  common  law  of 
war.  In  this  changed  condition  of  things,  the 
military  commission  supersedes  the  civil  tri 
bunal,  and  the  common  law  of  wrar  supersedes 
the  civil  law;  but  the  rules  of  the  common  law 
of  war  are  as  clearly  defined  as  are  those  of 
the  civil  law,  and  the  jurisdiction  of  the  mili 
tary  commission  is  as  accurately  denned  as  the 
jurisdiction  of  the  civil  tribunal.  The  com 
mon  law  of  war  determines  the  manner  in 
which  a  military  commission,  charged  with  its 
administration,  shall  be  organized,  the  mode  in 
which  proceedings  before  it  shall  be  conducted, 
the  rules  by  which  it  shall  determine  questions 
of  evidence  arising  in  the  course  of  the  trial, 
and  the  penalty  to  which  it  shall  subject  the 
accused  upon  conviction. 

By  this  law  a  military  commission  must  be 
organized  in  the  manner  in  which  courts-mar 
tial  arc  organized,  and  its  proceedings  must 
conform  to  the  manner  of  proceedings  before 
courts-martial,  and  be  conducted  according  to 
the  rules  prescribing  the  mode  and  m.'inner  of 
conducting  proceedings  before  these  tribunals. 

By  the  same  common  law  of  war,  the  juris*- 
diction  of  a  military  commission  as  to  persons 
and  offenses  is  also  limited  and  denned.  A 
military  commission  possesses  no  power  to  try 
a  person  in  the  army  or  navy  of  the  United 
States  for  any  offense  provided  for  in  the  arti 
cles  of  war.  It  has  no  jurisdiction  in  the  case 
of  a  soldier  charged  with  disobedience  of  or 
ders,  desertion,  etc.  Offenses  of  this  nature, 
and  committed  by  persons  subject  to  military 
law,  arc  expressly  cognizable  before  the  mili 
tary  courts  created  by  that  law,  and  known  as 
courts-martial.  If,  in  time  of  peace,  a  soldier 
commit  an  offense  against  the  civil  law  not 
provided  for  in  the  articles  of  war,  he  is  sur 
rendered  up  to  the  civiljurisdiction  to  be  tried; 
and  if  he  commit  such  an  offense  in  time  of 
war  in  a  district  subject  to  martial  law,  he  will 
be  tried  by  military  commission,  which,  in  such 
district,  supersedes  the  civil  courts  in  the  ad 
ministration  of  justice.  It  is,  therefore,  appa 
rent  that  everything  in  the  organization  of  the 
military  commission,  or  in  the  manner  of  con 
ducting  proceedings  before  it,  from  the  filing 
of  the  charges  and  specifications,  down  to  the 
final  decision  of  the  court,  and  its  jurisdiction 
as  to  persons,  is  not  entirely  within  the  dis- 


ARGUMENT   OF   FREDERICK  STONE. 


269 


cretion  of  the  Commander-in-Chief  or  of  the 
commission  itself,  but  is  subject  to  the  estab 
lished  rules  and  principles  of  the  common  law 
of  war,  which  calls  it  into  existence,  to  admin 
ister  justice  according  to  those  rules  and  prin 
ciples. 

What  are  these  rules  and  principles  ?  They 
are  clearly  indicated  in  article  6  of  General 
Order  No.  100  (already  in  evidence  in  this 
case),  which  is  as  follows: 

'•All  civil  and  penal  law  shall  continue  to 
take  its  usual  course  in  the  enemy's  places  and 
territories  under  martial  law,  unless  inter 
rupted  or  stopped  by  order  of  the  occupying 
military  power;  but  all  functions  of  the  hostile 
government — legislative,  executive  or  adminis 
trative — whether  of  a  general,  provincial  or 
local  character,  cease  under  martial  law,  or  con 
tinue  only  with  the  sanction,  oi',  if  deemed 
necessary,  the  participation,  of  the  occupier  or 
invader." 

This  order  proves  that,  in  the  enemy's  coun 
try,  under  martial  law,  the  civil  and  penal 
law  shall  remain  as  the  rule  of  conduct  and  law 
of  the  people,  unless  interrupted  by  express 
command.  In  the  absence  of  any  command 
interrupting  the  operation  of  the  civil  and 
penal  law,  what  is  the  law  over  that  portion  of 
the  enemy  s  territory  to  which  this  order  refers? 
Martial  law  certainly  prevails,  because  the 
territory  referred  to  is  described  as  territory 
under  martial  law.  The  civil  and  penal  law 
of  the  country  also  prevails,  because  the  order 
expressly  declares  that  it  shall  continue.  It  is 
apparent,  therefore,  that  two  systems  of  juris 
prudence  prevail  at  the  same  time  on  the  same 
territory;  one,  tfce  system  which  martial  law 
establishes,  and  known  as  the  system  of  the 
common  law  of  war,  and  the  other,  the  system 
in  force  over  the  territory  at  the  time  of  its 
conquest.  But  the  latter  system,  although  pre 
vailing,  can  not  be  enforced,  except  by  the  con 
queror,  for  the  article  further  provides  that  all 
the  "functions  of  the  hostile  government, 
legislative,  executive  or  administrative,  whether 
of  a  general,  provincial  or  local  character, 
cease  under  martial  law,  or  continue  only  with 
the  sanction,  or  if  deemed  necessary,  the  par 
ticipation,  of  the  occupier  or  invader." 

Judicial  power  is  one  of  the  functions  of 
government,  and  is  specifically  designated  in 
the  order  by  the  word  "administrative."  All 
the  functions  of  the  government,  including  the 
administrative  functions,  must  cease  under 
martial  law;  but  still,  by  the  terms  of  the 
order,  the  civil  and  penal  law  shall  continue 
and  take  its  course,  and  be  administered.  By 
whom?  By  what  tribunals?  The  civil  courts 
can  no  longer  exercise  functions  of  their  admin 
istering  the  law,  and  military  courts  administer, 
not  civil  and  penal  law,  but  military  law  and 
the  common  law  of  war.  Article  13  of  the 
order  referred  to  says: 

"Military  jurisdiction  is  of  two  kinds:  first, 
that  which  is  conferred  and  defined  by  statute; 
second,  that  which  is  derived  from  the  common 
law  of  war." 

How,  then,  can  a  military  jurisdiction  ad 
minister  civil  and  penal  law?  There  is  but  one 
solution  to  the  difficulty,  and  it  is  in  the  appli 


cation  of  the  principle  lying  at  the  foundation 
of  the  common  law  of  war,  and  determining 
the  system  of  jurisprudence  known  by  that 
name,  and  it  is  this:  That  where^by  virtue  of 
the  existence  of  martial  law,  the  common  law 
of  war  is  required  to  be  administered,  the  civil 
and  penal  law  of  the  territory  subject  to  mar 
tial  law  becomes  part  of  that  common  law  of 
war,  and,  as  such,  is  to  be  administered  by 
military  tribunals,  under  military  modes  of 
procedure,  with  the  same  effect  in  securing  the 
rights  of  litigants  and  the  punishment  of  crimes 
as  if  administered  by  civil  tribunals,  accord 
ing  to  the  modes  provided  and  adopted  in  the 
civil  courts. 

I  do  not  mean  to  contend  that  the  code  of  the 
common  law  of  war  is  exclusively  made  up  of 
the  civil  and  penal  law  of  the  country  which 
has  become  subject  to  martial  law,  but  that  the 
civil  and  penal  law  becomes  a  part  of  the  com 
mon  law  of  war  in  all  cases  to  which  it  is  ap 
plicable.  Under  martial  law  many  acts  become 
crimes  which  are  innoxious  and  innocent  in 
time  of  peace  and  under  the  civil  code,  and 
which  are  not,  therefore,  provided  against  in 
the  civil  and  penal  law. 

In  regard  to  the  trial  of  persons  arraigned 
for  any  of  this  class  of  crimes,  the  Commission 
must  conform  in  its  action,  as  nearly  as  may  be, 
to  the  authenticated  precedents  of  the  common 
law  of  war,  and  administer  justice  with  sound 
discretion;  but  in  regard  to  the  trial  of  persons 
arraigned  for  offenses  created  and  recognized 
by  the  civil  and  penal  law,  the  Commission 
must  administer,  as  part  of  the  common  law  of 
war,  the  civil  and  penal  law  as  it  is  written. 
The  civil  and  penal  law  becomes  part  of  the 
common  law  of  war  by  the  fact  of  the  inaugu 
ration  of  martial  law. 

It  is  true  the  operation  of  this  principle  may 
be  interrupted  by  order  of  the  occupying  mil 
itary  power,  in  the  exercise  of  an  authority 
derived  from,  and  limited  by,  the  military  ne 
cessity;  but  the  right  to  interrupt  the  operation 
of  the  principle  by  special  order,  shows  that  the 
principle  continues  in  force  until  the  interrupt 
ing  order  is  promulgated.  It  may,  however, 
be  contended  that  a  special  order  in  such  case 
is  not  necessary  according  to  the  laws  of  war, 
and  would  not  be  required  except,  for  the 
mandate  of  section  G,  above  quoted  from.  If 
this  is  true,  then  the  principle  for  which  I  have 
contended  should  be  stated  with  a  qualification, 
and  the  civil  and  penal  law  of  the  country  sub 
ject  to  martial  law  becomes  a  part  of  the  com 
mon  law  of  war,  except  as  to  such  parts  thereof 
as  military  necessity  requires  should  be  sus 
pended.  Section  3  of  General  Order  No.  100 
provides  as  follows: 

"Martial  law  in  a  hostile  country  consists  in 
the  suspension,  by  the  occupying  military  au 
thority,  of  the  civil  and  criminal  law,  and  of 
the  domestic  administration  and  government 
of  the  occupied  place  or  territory,  and  the  sub 
stitution  of  military  rule  and  force  for  the 
same,  as  well  as  in  the  dictation  of  general 
laws,  as  far  as  military  necessity  requires  this 
suspension  or  dictation." 

According,  then,  to  this  section  of  the  order, 
the  civil  and  penal  law  is  suspended  only  as 


270 


THE    CONSPIRACY    TRIAL. 


far   as    military  necessity    requires  a  suspen 
sion. 

The  rule,  therefore,  is  that  the  civil  and  penal 
law  shall  continue  in  force,  and  the  exception 
is  as  to  such  parts  thereof  as  military  neces 
sity  may  require  to  be  suspended.  This  ne 
cessity,  as  is  well  understood,  is  not  a  condition 
in  which  the  suspension  of  the  civil  and  penal 
law  would  be  more  convenient  to  the  occupying 
military  power,  or  would  simply  gratify  the 
caprice  of  the  commander,  but  a  condition  in 
which  such  suspension  is  imperatively  de 
manded  to  meet  the  exigencies  of  war,  and 
absolutely  required  to  conduct  that  war  suc 
cessfully.  Military  necessity  is  thus  denned 
by  section  14  of  General  Order  No.  100: 

"Military  necessity,  as  understood  by  mod 
ern  civilized  nations,  consists  in  the  necessity 
of  those  measures  which  are  indispensable  for 
securing  the  ends  of  the  war,  and  which  are 
lawful  according  to  the  modern  law  and  usages 
of  war." 

That  portion  of  the  civil  and  penal  law  sus 
pended  in  theenemy's  country  subject  to  martial 
law,  on  the  ground  of  military  necessity,  must, 
therefore,  be  such  portions  of  said  law  as  it  is  in 
dispensable  to  suspend  for  securing  the  ends  of 
the  war,  and  which  it  is  also  lawful  to  suspend 
according  to  the  modern  law  and  usages  of 
war. 

Sections  3  and  6,  above  quoted,  of  General 
Order  No.  100,  by  their  terms,  refer  only  to  the 
"enemy's  country,"  but  they  indicate  the  effect 
of  martial  law  upon  the  system  of  jurisprudence 
to  be  administered  wherever  martial  law  pre 
vails.  That  effect  will  be  greater  or  less  in 
modifying  or  suspending  the  civil  and  penal 
laws  of  the  various  territories  that  may  be  sub 
ject  to  martial  law,  according  to  the  measure  of 
the  necessity  existing  in  each. 

Section  5  of  General  Order  No.  100  provides 
as  follows : 

"  Martial  law  should  be  less  stringent  in 
places  and  countries  fully  occupied  and  fairly 
conquered.  Much  greater  severity  may  be  ex 
ercised  in  places  or  regions  where  active  hos 
tilities  exist,  or  arc  expected,  and  must  be  pre 
pared  for.  Its  most  complete  sway  is  allowed 
even  in  the  commander's  own  country,  when 
face  to  face  with  the  enemy,  because  of  the  ab 
solute  necessities  of  the  case,  and  of  the  para 
mount  duty  to  defend  the  country  against  in 
vasion." 

It  is  apparent,  therefore,  that  the  effect  of 
martial  law  in  modifying  and  changing  the 
civil  and  penal  code,  or  the  civil  administration 
of  the  district  or  territory  in  which  it  prevails, 
depends  upon  the  military  necessity  growing 
out  of  the  condition  of  things  existing  in  such 
territory  or  district.  And  if  in  any  portion  of  the 
conquered  and  occupied  territory  of  the  enemy 
the  civil  and  penal  law  is  allowed  to  continue, 
certainly  in  such  portions  of  the  commander's 
own  country  as  may  be  declared  subject  to  mar 
tial  law,  the  civil  and  penal  law  should  not 
be  interrupted,  unless  some  extraordinary  and 
overwhelming  necessity  arises  to  justify  it. 

I  will  not  enter  into  the  inquiry  suggested  by 
section  5,  quoted  above,  as  to  whether  or  not 
martial  law  can  prevail  in  the  commanders 


own  country  in  any  case  other  than  that  re 
ferred  to  in  the  article,  to-wit :  when  face  to  face 
with  the  enemy,  and  to  which  condition  tiiis 
article  would  seem  to  limit  the  rightful  exercise 
of  that  law.  But  conceding  that  it  may  prevail 
within  the  commander's  country,  where  hostile 
armies  arc  not  arrayed  against  each  other  on 
its  soil,  and  war  is  not  in  actual  progress,  what, 
under  such  circumstances,  is  its  effect  in  inter 
rupting  or  suspending  the  civil  and  penal  law  ? 
I  concede,  for  the  purpose  of  this  argument, 
that  it  establishes  the  common  law  of  war  as 
suspending  the  civil  and  penal  law,  that  it  sub 
stitutes  a  military  tribunal  for  civil  courts,  and 
the  summary  process  of  military  arrests  for  the 
ordinary  mode  and  form  of  civil  arrests;  but, 
when  the  military  court  is  convened  and  organ 
ized,  what  law  is  it  required  to  administer? 
The  answer  is  obvious  :  it  is  to  administer  the 
common  law  of  war.  What  part  of  the  civil 
and  penal  law  has  been  excluded  from  that 
common  law  of  war  and  suspended  under  the 
force  of  a  necessity  making  such  suspen 
sion  indispensable  for  securing  the  ends  of  the 
war? 

This  Commission  is  sitting  not  only  in  the 
commander's  own  country,  but  in  the  capital  of 
that  country.  Before  it  met,  the 'last  hostile 
gun  of  the  war  had  been  flred,  a  thousand  miles 
away.  During  its  session  200,000  veterans 
have  returned  from  the  field,  and  passed  in  re 
view  in  sight  of  the  windows  of  this  court-room, 
their  faces  homeward  turned,  their  swords 
sheathed,  their  work  accomplished.  No  enemy 
now  remains  in  arms  against  the  Government 
of  the  country  ;  but  the  war  is  over,  and  peace 
restored.  Again,  I  ask,  what*military  neces 
sity  renders  a  suspension  of  the  civil  and  penal 
law  of  the  United  States,  in  the  capital  of  the 
United  States  indispensable  for  securing  the 
ends  of  war? 

The  second  inquiry  which  I  propose  to  make 
before  this  Commission,  is,  whether  martial  law 
did  exist  on  the  14th  of  April,  1865,  in  the  city 
of  Washington,  and  if  so,  to  what  extent,  and 
whether  it  does  now  exist  ?  The  only  evidence 
before  the  Commission  of  the  existence  of  mar 
tial  law  in  the  city  of  Washington,  on  the  14th 
of  April  last,  is  the  proclamation  of  the  Presi 
dent  of  the  United  States,  issued  in  September, 
1862.  That  proclamation  is  in  these  words: 

"That  during  the  existing  insurrection,  and 
as  a  necessary  measure  for  suppressing  the 
same,  all  rebels  and  insurgents,  their  aiders 
and  abettors,  within  the  United  States,  and  all 
persons  discouraging  volunteer  enlistments, 
resisting  militia  drafts,  or  guilty  of  any  dis 
loyal  practice,  affording  aid  and  comfort  to 
rebels  against  the  authority  of  the  United 
States,  shall  be  subject  to  martial  law,  and  lia 
ble  to  trial  and  punishment  by  courts-martial 
or  military  commission." 

It  appears  clearly,  from  General  Order  No. 
100,  that  martial  law  is  not,  if  I  may  use  such 
an  expression,  an  unbending  code ;  that  it  can 
be  made,  in  the  discretion  of  the  commander, 
more  or  less  stringent,  as  the  exigencies  of  the 
case  may  require.  It  also  is  apparent,  from 
the  same  General  Order,  that  martial  law  in 
I  the  commander's  own  country,  must  exist  by 


ARGUMENT   OF   FREDERICK   STONE. 


271 


virtue  of  some  proclamation  or  announcement. 
To  what  extent,  then,  does  it  appear  that  mar 
tial  law  was  declared  by  the  proclamation  of 
the  President  of  September,  18G2,  and  which  is 
sometimes  designated  as  General  Order  No. 
141?  The  President  of  the  United  States,  if 
he  had  the  right  to  issue  the  proclamation  at 
all.  had  the  right  to  limit  its  duration  and  the 
persons  to  whom  it  should  apply.  In  the  exer 
cise  of  this  constitutional  right,  the  President 
did  both ;  he  limited  the  time  of  existence  of 
martial  law,  as  well  as  the  persons  to  whom  it 
is  applied.  By  the  terms  of  that  order  declar 
ing  martial  law,  the  existence  of  that  martial 
law  is  made  to  depend  entirely  on  the  existence 
of  the  rebellion.  It  required  no  order  to  annul 
or  revoke  it;  it  carried,  if  I  may  use  such  an 
expression,  its  own  death-warrant  upon  its  face. 
"  During  the  existing  insui-rection,  and  as  a 
necessary  measure  for  its  suppression,"  per 
sons  guilty  of  affording  aid  and  comfort  to  the 
rebels  are  liable  to  be  tried  by  courts-martial 
or  military  commission.  Had  the  President 
of  the  United  States  intended  that  the  crime 
of  aiding  the  insurgents  by  giving  to  them  aid 
and  comfort,  which  occurred  during  the  rebel 
lion,  should  be  punished  after  the  rebellion  had 
ceased,  apt  words  were  at  hand  so  to  express 
the  order ;  but  the  order  is  not  so  expressed ; 
both  the  crime  and  the  punishment  are  made 
to  depend  upon  the  existence  of  the  rebellion,  j 
That  order,  too,  only  touches  a  particular! 
class  of  crimes.  It  does  not  touch  the  crime 
of  murder,  of  an  assault  with  intent  to  kill, 
of  aiding  or  abetting  in  a  murder,  or  aiding 
or  abetting  the  escape  of  a  murderer  from  jus 
tice,  or  of  a  conspiracy  to  murder.  The  same 
facts  make  the  crime,  and  the  same  punish 
ment  follows  conviction,  and  the  same  mode  of 
punishment  exists  after  the  issue  of  that  order 
as  did  before. 

Loyal  civil  courts  in  the  city  of  Washington 
have  been  constantly,  since  the  issue  of  that 
proclamation,  in  session,  with  full  and  ample 
power  and  authority  to  try  the  crimes  of  mur 
der,  of  conspiracy  to  murder,  of  assault  with 
intent  to  kill  and  murder,  and  of  aiding  and 
abetting  in  the  escape  of  a  murderer.  The 
jurisdiction  of  the  civil  courts  over  all  such 
crimes  last  above  enumerated  has  been  left 
untouched  and  undisturbed  by  that  order. 
There  has  been  no  hour  since  the  issue  of  that 
proclamation  that  the  Supreme  Court  of  the 
District  of  Columbia  has  not  had  full  and  ample 
powers  to  try  every  crime  enumerated  in  the 
charge  in  this  case.  Upon  the  suppression  of 
the  rebellion,  that  proclamation  expired,  and 
became  from  that  and  continues  to  this  hour  a 
dead  letter  upon  the  statute  book,  and  that 
martial  law  which  it  inaugurated  can  never 
again  exist  in  the  capital  of  the  country  until 
the  Commander-in-Chief,  in  the  exercise  of 
his  constitutional  powers,  shall  again  declare  it. 
But  supposing  the  proclamation  to  be  still 
in  force,  supposing  it  to  be  as  valid  this  day 
as  it  was  on  the  day  it  was  issued,  still  the  fact 
remains  that  it  only  applies  to  one  single  class 
of  persons  and  to  one  single  crime,  and  that 
crime  is  aiding  and  abetting  the  rebellion. 
And  if  this  Commission  should  conclude  that 


General  Order  No.  141  is  still  in  force,  and 
that  they  derive  their  power  and  authority  to 
hear  and  determine  these  cases  by  virtue  of 
that  general  order,  still  the  fact  remains  that 
they  have  only  the  power  under  that  order  to 
try  the  naked  crime  of  aiding  and  abetting  the 
rebellion. 

The  charge  in  this  case  consists  of  several 
distinct  and  separate  offenses  embodied  in  one 
charge.  The  parties  accused  are  charged  with 
a  conspiracy  in  aid  of  the  rebellion,  withjnur- 
der,  with  assault  with  intent  to  kill,  and  with 
lying  in  wait.  It  is  extremely  doubtful  from 
the  language  of  the  charge  and  the  specifica 
tion,  under  which  of  the  following  crimes  the 
accused,  Herold,  is  arraigned  and  now  on  his 
trial,  viz.: 

I.  Whether   he  is   on  trial    for   the  crime  of 
conspiracy  to  overthrow  the  Government  of  the 
United  States,  as  punishable  by  the   act  of  the 
Congress  of  the  United  States,  as  passed  the  31st 
of  July,  1861 ;  or, 

II.  Whether  he  is  on  his  trial  for  giving  aid 
and  comfort  to  the   existing  rebellion,    as  pun 
ishable  by  the  act  of  Congress   passed  the  17th 
of  July,  1862;  or, 

III.  Whether  he  is  on   trial  for  aiding   and 
abetting  the  murder  of  Abraham  Lincoln,  Pres 
ident  of  the  United  States. 

His  counsel  well  understands  the  legal  defi 
nition  of  the  three  crimes  above  mentioned, 
but  does  not  understand  that  either  to  the  com 
mon  law  or  to  the  law  of  war  is  known  any 
one  offense  comprised  of  the  three  crimes  men 
tioned  in  this  charge.  He  knows  of  no  one 
crime  of  a  conspiracy  to  murder  and  an  actual 
murder,  all  in  aid  of  the  rebellion,  distinct  and 
separate  from  the  well-known  and  defined 
crimes  of  murder,  of  conspiracy  in  aid  of  the 
rebellion,  or  of  giving  aid  and  comfort  to  the 
rebellion  as  defined  by  the  acts  of  Congress. 
It  is  extremely  doubtful,  from  the  language  of 
this  charge,  whether  the  murder  of  the  Presi 
dent  of  the  United  States  is  not  referred  to  as 
the  mere  means  by  which  the  conspirators  gave 
aid  and  comfort  to  the  rebellion — whether  it 
was  riot  merely  the  overt  act  by  which  the 
crime  of  aiding  the  rebellion  was  completed. 

If  the  crime  of  aiding  and  abetting  the  re 
bellion,  as  laid  in  the  charge  and  specification, 
is  only  laid  as  the  inducement  to  the  crime  of 
murder,  then  the  crime  as  laid  in  the  charge 
and  specification  does  not  come  within  the  terms 
of  the  proclamation  of  September,  1862.  It  is 
the  actual  crime,  and  not  the  motives  which  in 
duced  it,  that  confers  the  jurisdiction.  In  the 
first  general  specification  of  the  charge  we  find 
the  following  words  used:  "  And  by  the  means 
aforesaid"  (referring  to  the  murder  of  the 
President,  Vice-President,  the  Secretary  of 
State,  and  the  Lieutenant-General),  "to aid  and 
comfort  the  insurgents  in  armed  rebellion 
against  the  United  States  as  afoi-esaid,  and 
thereby  to  aid  in  the  subversion  and  overthrow 
of  the  Constitution  and  laws  of  the  United 
States."  In  that  sentence  the  murder  of  the 
President  of  the  United  States  and  the  rest  of 
the  crimes  aforesaid  are  merely  spoken  of  as 
the  means,  and  not  as  the  end. 


272 


THE    CONSPIRACY   TRIAL. 


The  ambiguity  in  the  charge  and  the  first 
general  specification  is  not  relieved  by  the 
special  specification  against  the  accused,  Her 
old.  The  special  specification  against  him  tises 
these  terms  : 

"And  in  further  prosecution  of  the  said  un 
lawful,  murderous  and  traitorous  conspiracy, 
and  in  pursuance  thereof,  and  with  the  intent 
aforesaid,''  etc. 

The  special  specification  then  goes  on  to 
charge  Herold  with  two  matters  :  first,  with  aid 
ing  and  abetting  in  the  murder  of  the  President 
of  the  United  States;  and  second,  Avith  aiding 
and  abetting  Booth  in  his  escape  from  justice 
after  the  murder. 

The  language  of  the  charge  and  of  the  gen 
eral  specification,  as  well  as  of  the  special 
specification,  leaving  it  doubtful  whether  the 
accused  is  charged  with  all  three  or  any  one,  it 
is  necessary  for  his  counsel  to  present  his  de 
fenses  to  all  three  of  the  crimes  mentioned  in 
the  charge  and  specification. 

First,  as  to  the  crime  of  conspiracy.  What 
evidence  is  there  of  the  accused,  Herold,  having 
conspired  to  murder  the  President,  or  to  aid  the 
rebellion  and  overthrow  the  Constitution  and 
laws  of  the  United  States?  The  evidence  upon 
that  point  consists  of  but  very  few  facts. 

The  first  that  it  is  necessary  to  notice  is  the 
testimony  of  Weichmann,  who  says  that  he  saw 
Herold  once  at  Mrs.  Surratt's  house  since  he 
went  there  to  board,  which  was  in  November, 
18G4.  It  is  hardly  possible  that  this  Commis 
sion  will  take  a  single  visit  of  a  young  man  to 
a  house,  where  there  were  both  young  men  and 
young  ladies,  as  evidence  of  complicity  in  a 
conspiracy  of  so  grave  and  heinous  a  character, 
especially  as  the  same  witness  deposes  that 
Herold  was  a  previous  acquaintance  of  the  Sur- 
ratts,  as  he  had  seen  him  before  they  moved  to 
town,  down  in  the  country,  at  a  serenade  there 
some  eighteen  months  before. 

The  same  witness  (Weichmann)  also  deposes 
that  once  in  the  winter  of  1865,  he,  Holahan, 
Atzerodt,  and  this  boy  Herold  wen^  to  the  thea- 
ater  to  see  Booth  play;  that,  on  leaving  the 
theater  arid  going  down  the  street,  he  (the  wit 
ness,  Weichmann)  and  Holahan  going  in  ad 
vance,  they  found  that  they  had  outwalked  the 
other  three  of  the  party ;  that  the  witness(Weich- 
mann)  returned,  and  found  Booth,  Atzerodt, 
and  Herold  in  a  restaurant,  and,  to  use  his  ex 
pression,  "in  close  conversation  near  a  stove," 
and  upon  his  going  in  they  invited  him  to  take 
a  drink.  If  the  fact  of  two  persons  going  to  a 
theater  to  see  a  popular  play,  and  leaving  that 
theater  with  the  addition  of  a  third,  and  stop 
ping  at  a  restaurant  and  taking  a  drink,  or  stand 
ing  all  three  as  (in  the  witness'  opinion)  in 
confidential  conversation,  is  an  evidence  of  con 
spiracy,  probably  half  of  the  population  of  Wash 
ington  city  during  the  winter  could  be  convicted 
On  the  same  testimony. 

The  only  other  testimony  is  that  of  John  M. 
Lloyd,  who  deposes  that  John  Surratt  and  At 
zerodt,  some  weeks  before  the  assassination, 


out  b}r  himself,  apart  from  Herold,  and  out  of 
Herold  s  sight  and  hearing,  and  handed  him 
(Lloyd)  two  carbines.  There  is  no  evidence 
whatever  in  Lloyd's  testimony  that  Herold  had 
the  most  remote  knowledge  that  Surratt  had 
given  Lloyd  the  carbines. 

There  is  one  other  point  which  was  given  in 
evidence  by  the  Government,  and  that  is  the 
testimony  of  the  witness  Taltavull,  the  restau 
rant  keeper,  who  deposes  that  one  night,  either 
Friday,  the  night  of  the  assassination,  or 
Thursday,  the  night  before  it,  Herold  came  into 
his  restaurant  and  asked  if  Booth  had  been 
there. 

Fifty  people  could  probably  be  convicted  if 
facts  like  these  wei*e  sufficient  to  convict;  but 
they  do  not  give,  either  separately  or  collec 
tively,  the  slightest  evidence  that  this  boy  Her 
old  ever  conspired  with  Booth  and  others  in 
aid  of  the  rebellion,  and  for  the  overthrow  of 
the  Government  of  the  United  States.  They 
show  nothing  that  might  not  have  occurred  to 
any  one,  perfectly  consistent  with  the  most  per 
fect  innocence.  The  term  "confidential  com 
munication"  is  the  witness'  (Weichmann's) 
own  construction.  He  meant  only  to  say  that 
the  three  were  talking  together — that  after  leav 
ing  the  theater,  where  they  had  been,  the  three 
stopped  and  went  into  a  restaurant,  and  that 
he  found  them  there  talking  together  near  a 
stove.  So  much  for  the  conspiracy. 

In  the  special  specification  there  arc  two 
things  charged.  The  first  is  the  murder  of  the 
President  of  the  United  States;  the  second, 
aiding  and  abetting  Booth  in  his  escape  from 
justice  after  the  murder.  An  accessory  after 
the  fact  is  thus  defined:  "An  accessory  after 
the  fact  is  one  who,  when  knowing  a  felony  to 
have  been  committed  by  another,  receives,  re 
lieves,  comforts  or  assists  the  felon."  There 
is  no  reasonable  doubt,  from  the  evidence  in 
this  case,  that  the  accused,  Herold,  was  guilty 
of  aiding  and  abetting  Booth  in  his  escape 
from  justice.  It  is  not  the  object  of  the  coun 
sel  for  the  accused  either  to  misrepresent  the 
law  (which  would  be  xiseless  in  the  presence 
of  the  able  and  learned  Judge  Advocates  who 
are  conducting  this  case  on  the  part  of  the 
Government),  or  to  attempt  to  misrepresent  the 
facts  that  have  been  disclosed  in  the  evidence, 
which  would  be  equally  useless  before  this 
Court.  Of  the  fact  that  this  boy,  Herold,  was 
an  aider  and  abettor  in  the  escape  of  Booth, 
there  is  no  rational  or  reasonable  doubt.  He 
was  clearly  guilty  of  that  crime,  and  must 
abide  by  its  consequences.  But  the  accused, 
by  his  counsel,  altogether  denies  that  he  was 
guilty  of  the  murder  of  Abraham  Lincoln. 
President  of  the  United  States,  or  that  he  aided 
and  abetted  in  the  murder  of  Abraham  Lin 
coln,  President  of  the  United  States, 
forth  in  the  specification  and  the  charge. 

Herold  is  charged  in  the  charge  witli  the 
murder  of  the  President,  It  is  shown,  as  clearly 
as  the  sun  shines,  that  he  did  not  do  the  murder 
with  his  own  hands,  that  he  did  not  strike  the 


passed  his  house,  and  that  on  their  return  Her- j  mortal  blow;  and  the  only  question  that  can 
old  was  with  them,  Herold  being  in  a  buggy  I  arise  under  the  charge  and  specification,  and 
alone  ;  that  they  stopped  at  his  house  and  took  \  the  evidence,  in  this  cause,  is  whether  lie  was 
drinks;  thai  John  Surratt  took  him  (Lloyd)  I  such  an  aider  and  abettor  as  would  make  him 


ARGUMENT    OF   FREDERICK    STONE. 


equally  guilty  with  the  party  who  did  strike 
the  blow;  and  in  order  to  arrive  at  a  satisfac 
tory  conclusion  whether  he  did  so  aid  and  abet 
in  the  murder  of  the  President  of  the  United 
States,  it  is  necessary  to  examine  what  will 
constitute  an  aider  and  abettor. 

An  aider  and  abettor,  termed  in  the  law  a 
principal  in  the  second  degree,  is  thus  denned: 

"Principals  in  the  second  degree  are  those 
who  are  present  aiding  and  abetting  at  the 
commission  of  the  fact.  To  constitute  princi 
pals  in  the  second  degree  there  must  be,  in  the 
first  place,  a  participation  in  the  act  committed, 
and,  in  the  second  place,  presence,  either 
actual  or  constructive,  at  the  time  of  its  com 
mission."  Whartorfs  American  Criminal  Law, 
4tk  edition,  §  116. 

What  is  that  "actual  or  constructive"  pres 
ence  is  thus  explained  in  the  same  book,  $  124 : 

"It  is  not  necessary  that  the  party  should  be 
actually  present,  an  ear  or  eye-witness  of  the 
transaction.  He  is,  in  construction  of  law, 
present  aiding  and  abetting  if,  with  the  inten 
tion  of  giving  assistance,  he  be  near  enough 
to  afford  it  should  the  occasion  arise." 

Now,  did  the  accused,  in  the  language  of  the 
law,  participate  in  the  act?  Did  he  strike  the 
illusti'ious  victim  the  fatal  blow?  Did  he  point 
or  hold  the  weapon?  Did  he  open  the  door  of 
that  accursed  box?  Did  he  bar  that  outer  door? 
Did  he  clear  the  passage  of  the  theater?  Did 
he  stop  or  attempt  to  stop  pursuit?  Was  he 
even  in  the  theater  at  the  time  the  fatal  deed 
was  done?  To  all  these  questions  the  evidence 
answers,  distinctly  and  emphatically,  no. 

As  to  the  second  branch  of  the  definition  of  a 
principal  in  the  second  degree,  was  he  con 
structively  present?  He  was  not  actually 
present,  as  we  have  seen  above.  Was  he,  then, 
constructively  present?  That  is  to  say,  in  the 
language  last  quoted  from  Wharton,  was  he, 
"with  the  intention  of  giving  assistance," 
"  near  enough  to  afford  it,  should  the  occasion 
arise?"  What  says  the  evidence  on  this  point? 
John  Fletcher,  the  only  witness  who  mentions 
Herold  at  all  on  the  14th  of  April,  1865,  says 
that  he  saw  Herold  at  twenty-five  minutes  past 
ten  o'clock  that  night,  riding  on  horseback, 
slowly,  on  Pennsylvania  avenue,  near  Willard's 
Hotel,  coming  from  the  direction  of  George 
town;  that  his  horse  seemed  to  be  somewhat, 
though  not  very,  tired,  and  gave  evidences  of 
having  been  ridden.  The  main  portion  of  the 
testimony  places  the  assassination  of  the  Pres 
ident  at  fifteen  minutes  after  ten  o'clock.  That 
the  assassination  took  place  in  the  midst  of  a 
crowded  theater,  there  is  no  controversy  or  dis 
pute. 

Now,  what  possible  assistance  could  the  ac 
cused  have  rendered  to  a  murder  committed  in 
Ford's  theater  about  the  time  that  he  was  riding 
slowly  down  the  middle  of  Pennsylvania  av 
enue?  No  living  man  saw  Herold  nearer  Ford's 
theater,  on  that  fatal  night,  than  the  witness, 
Fletcher.  Every  circumstance  attending  that 
dreadful  act  has  been  minutely  detailed  to  this 
Court  by  witnesses  who  were  present.  What 
possible  assistance  could  the  accused,  Herold, 
have  rendered  to  the  murderer?  The  only  time 
that  he  was  seen  on  that  night,  and  about  the 

18 


time  of  the  murder,  he  was  fully  half  a  mile 
from  the  scene  of  the  dreadful  tragedy. 

In  order  to  convict  him  of  being  near  enough 
to  give  aid,  should  the  occasion  arise,  the  Court 
must,  be  satisfied  of  the  nature  of  the  aid  that 
he  was  able  to  give.  What  aid  could  he  have 
possibly  given  ?  Was  he  near  enough  to  hand 
Booth  another  pistol  in  case  the  first  missed 
fire?  Was  he  near  enough  to  prevent  assist 
ance  being  given  to  the  lamented  President  in 
case  the  first  shot  did  not  take  effect?  Was  he 
in  a  situation  to  give  the  murderer  any  aid  in 
his  escape  from  the  theater?  As  far  as  this 
testimony  discloses,  Herold  was  entirely  un 
armed.  Can  the  Court  conceive  any  possible 
assistance  that,  under  these  circumstances,  he, 
on  the  outside  of  the  theater,  in  the  middle  of 
the  principal  street  of  Washington,  half  a  mile 
from  the  theater,  about  the  time  the  murder  was 
committed,  could  have  given  Booth  in  the  mur 
der,  or  even  in  his  escape? 

To  constitute  an  aider  and  abettor,  the  ac 
cused  must  have  been  in  a  situation  to  render 
aid.  Booth  might  have  supposed  him  to  be  in 
a  situation,  the  accused  might  have  supposed 
himself  even  to  be  in  a  situation  to  render  aid; 
but  it  is  not  sufficient,  unless  the  Court  are  sat 
isfied,  from  the  evidence  brought  before  them, 
that  he  was  actually  and  positively  in  a  situa 
tion  where  he  could  have  rendered  aid  in  the 
commission  of  the  act;  and,  in  support  of  this 
position,  I  refer  to  9  Pickering s  Reports  p. 
496: 

"To  be  present  aiding  and  abetting  the  com 
mission  of  a  felony,  the  abettor  must  be  in  a 
situation  where  he  may  actually  aid  the  perpe 
trator.  It  is  not  enough  that  he  is  at  a  place 
appointed,  where  the  perpetrator  erroneously 
supposes  he  might  render  aid." 

But  it  may  be  argued  that  the  accused  said 
to  Jett,  a  witness  produced  from  the  State  of 
Virginia,  "  We  are  the  assassinators  of  the 
President."  If  the  Court  will  examine,  they 
will  find  that  this  declaration  was  qualified 
one  moment  after  it  was  made;  that,  pointing 
to  Booth,  the  accused  said,  "  Yonder  is  the  as 
sassinator."  Herold  is  on  trial  for  his  acts, 
and  not  for  his  words.  It  is  shown  conclu 
sively,  in  this  case,  that  Booth,  and  not  Her 
old,  assassinated  the  President.  If  Jett  heard 
accurately  the  words  used  by  Herold,  taken 
in  connection  with  the  facts  disclosed  to  this 
Court,  they  only  disclosed  to  Jett  the  charflc- 
ter  of  the  party.  Declarations  are  only  a 
means  to  arrive  at  the  true  character  of  acts. 
They  must  be  taken  in  connection  with  the 
facts  of  every  case  ;  and  it  is  clear,  from  every 
particle  of  testimony  in  this  case,  that  Herold 
was  not  the  "assassinator"  of  the  President ; 
and  even  if  he  used  the  words  as  repeated  by 
Jett,  the  meaning  is  clear  enough;  he  meant 
to  designate  and  point  out  to  Jett,  the  witness, 
the  character  of  the  party  that  he  was  with. 

But  it  may  be  urged  that  the  flight  of  Herold 
is  evidence  of  his  guilt.  It  is  true  that  flight, 
unexplained,  is  always  regarded  as  evidence 
of  guilt,  but  not  conclusive  evidence. 

"  By  the  common  law,  flight  was  regarded  so 
strong  a  presumption  of  guilt,  that,  in  cases 
of  treason  and  felony,  it  carried  forfeiture  of 


274 


THE    CONSPIRACY   TRIAL. 


the  person's  goods,  whether  he  was  found 
guilty  or  acquitted.  These  several  acts,  in  all 
their  modifications,  are  indicative  of  fear, 
which,  however,  may  spring  from  causes  very 
different  from  that  of  conscious  guilt.  Mr. 
Justice  Abbott,  on  the  trial  of  Donnall  for  the 
murder  of  Mrs.  Downing,  observed,  in  his 
charge  to  the  jury,  that  a  person,  however  con 
scious  of  innocence,  might  not  have  the  cour 
age  to  stand  a  trial,  but  might,  though  inno 
cent,  think  it  best  to  consult  his  safety  by 
flight."  Wharton,  4th  ed.,  sec.  714. 

But  what  guilt  in  this  case  is  the  flight  of 
Herold  evidence  of?  He  is  found  with  Booth, 
and  his  flight  in  this  case  is  not  only  evidence, 
but  constitutes  the  guilt  that  he  has  acknowl 
edged ;  it  constitutes  the  guilt  of  his  aiding  in 
the  escape  of  Booth,  but  no  more.  It  by  no 
means  follows,  because  he  aided  Booth  to  escape, 
that  he  aided  him  to  kill  the  President.  It  is 
bad  reasoning  to  conclude  that  because  he  was 
guilty  of  one  crime  he  was  guilty  of  others. 

But  it  may  be  asked,  why  did  he  leave  in* 
the  dead  hour  of  the  night  with  a  murderer  ?  A 
slight  glance  at  the  relative  character  of  the  two 
men  may  explain  this  difficulty.  John  Wilkes 
Booth,  as  appears  from  all  the  evidence  in  this 
case,  was  a  man  of  determined  and  resolute 
will,  of  pleasing,  fascinating  manners,  and 
one  who  exercised  great  influence  arid  control 
over  the  lower  orders  of  men  with  whom  he 
was  brought  in  contact.  He  was  a  man  of 
means,  quite  a  prominent  actor,  fine  in  per 
sonal  appearance  and  manners,  and  an  adept 
in  athletic  and  manly  exercises.  All  the  force 
of  his  mind,  all  his  means,  and  his  time  in  the 
winter  of  1865,  were  devoted  to  get  agents  to 
aid  in  his  desperate  enterprise.  In  his  search 
he  met  with  Herold,  then  out  of  employment, 
and  he  at  once  marked  him  for  his  own. 

Who  is  Herold,  and  what  does  the  testimony 
disclose  him  to  be  ?  A  weak,  cowardly,  fool 
ish,  miserable  boy.  On  this  point  there  is  no 
conflict.  Dr.  McKim,  who  probably  knew  him 
best,  and  in  whose  employ  he  had  been,  de 
clares  that  his  mind  was  that  of  a  boy  of 
\  eleven  years  of  age,  although  his  age  actually 
was  about  22 — not  naturally  vicious,  but  weak, 
light,  trifling,  easily  persuaded,  good  tempered, 
ready  to  laugh  and  applaud,  and  ready  to  do 
the  bidding  of  those  around  him.  Such  a  boy 
was  only  wax  in  the  hands  of  a  man  like  Booth. 

But  though  Booth  exercised  unlimited  con 
trol  over  this  miserable  boy,  body  and  soul,  he 
found  him  unfit  for  deeds  of  blood  and  vio 
lence;  he  was  cowardly;  he  was  too  weak  and 
trifling  ;  but  still  he  could  be  made  useful.  He 
knew  some  of  the  roads  through  Lower  Mary 
land,  and  Booth  persuaded  him  to  act  as  guide, 
foot-boy,  companion.  This  accounts  for  their 
companionship. 

There  is  one  piece  of  evidence  introduced  by 
the  Government  that  should  be  weighed  by  the 
Commission.  It  is  the  declaration  of  Booth, 
made  at  the  time  of  his  capture  :  "I  declare, 
before  my  Maker,  that  this  man  is  innocent." 
Booth  knew  well  enough,  at  the  time  he  made 
that  declaration,  that  his  hours,  if  not  his  min 
utes,  were  numbered.  In  natures  the  most  de 
praved,  there  seems  to  be  left  some  spark  of  a 


better  humanity,  and  this  little  remnant  of  a 
better  nature  urged  Booth  to  make  that  dec 
laration  while  it  was  yet  time  to  do  so.  What 
did  he  mean  by  that  declaration  ?  Not  that 
Herold  was  not  guilty  of  the  act  of  aiding  and 
assisting  him  (Booth)  to  escape;  but  what  he 
did  mean,  and  what  he  tried  to  convey,  was, 
that  Herold  was  guiltless  of  the  stain  of  blood 
being  upon  his  hands,  either  as  an  accessory 
before  the  fact  to  the  murder  of  the  President, 
or  as  an  aider  arid  abettor  in  that  murder,  or 
any  other  deed  of  violence.  That  is  what  he 
meant. 

I  should  mention  here,  what  I  might  more 
properly,  perhaps,  have  mentioned  in  another 
place,  that  I  think  it  has  been  made  clear  from 
the  testimony,  that  Dr.  Merritt,  who  said 
Herold  was  in  Canada  between  the  15th  and 
20th  of  February  last,  was  manifestly  mistaken. 
Merritt  was  positive  as  to  the  location  of  the 
time,  and  if  he  did  not  see  him  there  during 
that  time,  he  did  not  see  him  at  all.  He  did 
not  profess  to  have  been  introduced  to  him,  or 
to  have  had  conversation  with  him,  nor  was  he 
pointed  out  to  him,  as  Merritt  says,  by  name; 
but  the  sum  of  his  testimony  is,  that  between 
the  15th  and  20th  of  February  last,  a  man  was 
pointed  out  to  him  whose  name  was  Harrison, 
and  who,  he  thinks,  was  the  prisoner  Herold. 
It  appears,  from  the  testimony  of  his  little  sis 
ter,  as  well  as  that  of  Mrs.  Jenkins,  that  Her 
old  was  at  home  on  the  15th  of  February ;  it 
appears  conclusively,  from  the  testimony  of 
Mrs.  Potts,  that  he  was  at  home,  as  she  paid 
him  some  money  and  took  his  receipt,  on  the 
18th  of  February;  and  it  appears  equally  con 
clusively  from  the  testimony  of  Captain  Ed 
monds,  an  officer  in  the  navy,  that  he  was  at 
home  on  the  20th  of  the  same  month,  showing 
clearly  that  Herold  was  not  in  Canada;  that 
Dr.  Merritt  was  mistaken ;  it  was  some  other 
man;  more  than  probable  Surratt,  who  was 
called  very  frequently  by  his  middle  name  of 
Harrison. 

It  has  been  intimated  by  one  of  the  Assistant 
Judge  Advocates  that  "  where  parties  are  in 
dicted  for  a  conspiracy  and  the  execution  there 
of,  it  is  but  one  crime  at  the  common  law;  and 
that,  upon  all  authority,  as  many  overt  acts  in 
the  execution  of  that  conspiracy  as  they  are 
guilty  of  may  be  laid  in  the  same  count."  To 
this  doctrine  the  accused  can  not  assent.  The 
crime  of  conspiracy  is  thus  defined  by  Mr.  Ser 
geant  Taltourd: 

uThe  offense  of  conspiracy  consists,  accord 
ing  to  all  authorities,  not  in  the  accomplishment 
of  any  unlawful  or  injurious  purpose,  nor  in 
any  one  act  moving  toward  thatpurpose,  but  in 
the  actual  concert  and  agreement  of  two  or 
more  persons  to  effect  something,  which,  being 
so  concerted  and  agreed,  the  law  regards  as  the 
object  of  an  indictable  conspiracy."  Per  Baylcy 
«/".,  2  Barnewall  and  Alder  son,  205. 

If  this  decision  is  correct — and  of  its  cor 
rectness  I  think  there  can  be  no  doubt — the 
crime  of  conspiracy  becomes  complete  upon  the 
concert  and  agreement.  The  overt  act  is  not 
essential  to  the  completion  of  the  crime. 

In  Wharton's  American  Criminal  Law,  section 
2,335,  the  law  is  thus  set  out : 


ARGUMENT   OF   FREDERICK    STONE. 


275 


"  It  is  usual  to  set  out  the  overt  acts,  that  is 
to  say,  those  acts  which  may  have  been  done 
by  any  one  or  more  of  the  conspirators  in  pur 
suance  of  the  conspiracy,  and  in  order  to  effect 
the  common  purpose  of  it ;  but  this  is  not  requi 
site,  if  the  indictment  charge  what  is  in  itself 
an  unlawful  conspiracy.  The  offense  is  com 
plete  on  the  consummation  of  the  conspiracy, 
and  the  overt  acts,  though  it  is  proper  to  set 
them  forth,  may  be  either  regarded  as  matters 
of  aggravation,  or  discharged  as  surplusage." 

It  seems  to  me  clear  from  these  authorities 
that  the  conspiracy  to  commit  a  crime,  and  the 
actual  commission  of  that  crime,  are  nowhere 
regarded  in  the  eye  of  the  law  as  constituting 
but  one  offense.  They  do,  in  fact,  constitute 
two  separate  and  distinct  offenses,  and  the  party 
may  be  indicted  for  them  both,  or  for  either  of 
them  separately.  The  prevailing  doctrine  in 
this  country  is,  that  where  the  conspiracy  is 
to  commit  a  felony,  if  the  felony  is  afterward 
committed,  the  conspiracy  merges  in  the  felony, 
conspiracy  being  regarded  by  all  the  writers 
as  a  misdemeanor  merely. 

Again,  if  upon  a  conspiracy  being  entered 
into  to  commit  murder,  the  murder  is  after 
ward  actually  committed  by  one  of  the  conspir 
ators,  it  is  not  a  conclusion  of  law  that  the 
murder  is  committed  also  by  the  other  co-con 
spirators. 

Another  principle  here  comes  in.  To  the 
crime  of  murder,  there  may  be  principals  and 
accessories  before  and  after  the  fact.  A  co- 
conspirator  may  be  an  accessory  before  the 
fact,  but  it  does  not  follow,  because  he  is  a  co- 
conspirator,  that  he  is  an  accessory  before  the 
fact.  What  is  an  accessory  before  the  fact,  is 
thus  defined : 

"  An  accessory  before  the  fact,  is  one  who, 
though  absent  at  the  time  of  the  commission 
of  the  felony,  doth  yet  procure,  counsel,  com 
mand,  or  abet  another  to  commit  such  felony." 

Now,  where  is  the  evidence  that  Herold  pro 
cured,  counseled,  commanded,  or  abetted  Booth 
to  assassinate  the  President  of  the  United 
States  ? 

I  beg  leave  again  to  refer  the  Court  to  the 
case  of  the  Commonwealth  vs.  Knapp,  9  Picker 
ing's  Reports,  518: 

"The  fact  of  the  conspiracy  being  proved 
against  the  person  is  to  be  weighed  as  evidence 
in  the  case  having  a  tendency  to  prove  that 
the  prisoner  aided,  but  it  is  not  in  itself  to  be 
taken  as  a  legal  presumption  of  his  having 
aided  unless  disproved  by  him.  It  is  a  ques 
tion  of  evidence  for  the  consideration  of  the 
jury." 

Should,  then,  the  Court  determine  that  Her 


old  was  one  of  the  conspirators,  it  is  not  to  be 
taken  of  itself  as  any  conclusive  evidence  that 
he  aided  or  abetted  in  any  manner  the  murder. 
This  case  is  being  tried  by  the  rules  of  ev 
idence  as  known  to  the  common  law  and  the 
general  principles  of  that  law  applicable  to 
criminal  cases.  I  beg  leave  to  call  the  atten 
tion  of  the  Court  to  one  of  the  most  important 
and  most  thoroughly  established  rules  of  the 
common  law  in  the  investigation  of  all  crimes, 
and  that  rule  is  this:  That  whenever  upon  aiij 
question  there  should  arise  in  the  minds  of  the 
investigating  tribunal  any  reasonable  doubt, 
the  accused  should  have  the  benefit  of  that 
doubt.  This  rule  has  met  with  the  unqualified 
approbation  of  every  judge  in  England  and 
America  whose  name  adorns  the  judicial  his 
tory  of  either  country.  While  I  do  not  con 
tend  that  the  Court  should  for  a  moment  ex 
amine  the  record  for  the  purpose  of  raising 
capricious  doubts,  still,  whenever  the  record 
does  present  a  case  of  reasonable  doubt,  I  in 
sist  that  the  accused  shall  have  the  benefit  of 
that  doubt.  Apply  this  principle  to  the  main 
charge  in  this  case  :  Can  the  Court  say,  from 
the  evidence  before  them,  that,  on  the  night  of 
the  14th  of  April,  1865,  the  accused,  Herold, 
was  in  a  situation  where  he  could  render  aid 
in  the  actual  murder  of  the  President?  Taking 
into  consideration  the  mode  and  manner  of 
the  execution  of  that  murder,  and  Herold's 
position  from  the  time  of  its  commission,  it 
seems  to  me  that  it  is  almost,  if  not  quite,  clear 
that  he  was  not  in  a  situation  where  he  could 
render  such  aid.  Can  the  Court  say,  beyond 
a  reasonable  doubt,  then,  that  he  was  an  ac 
cessory  before  the  fact?  Can  they  say  that 
Herold  did  procure,  counsel,  command,  or  abet 
Booth  to  kill  and  murder  the  President  of  the 
United  States  ?  If  so,  what  word  or  deed  of 
Herold's  can  they  point  to  in  this  record  that 
does  amount  to  procuring,  counseling,  com 
manding  or  abetting?  There  is  clearly  none. 
The  feeble  aid  that  he  could  render  to  any  en 
terprise  was  rendered  in  accompanying  and 
aiding  Booth  in  his  flight,  and  nothing  beyond. 
That  of  itself  is  a  grave  crime,  and  carries  with 
it  its  appropriate  punishment. 

I  beg  leave  to  conclude  this  defense  with  a 
quotation  from  Benet  on  Military  Law  and 
Courts-martial : 

"  Where  the  punishments  for  particular  of 
fenses  are  not  fixed  by  law,  but  left  discretion 
ary  with  the  courts,  the  above  mandate  of  the 
Constitution  must  be  strictly  kept  in  view, 
and  the  benign  influence  of  a  mandate  from 
a  still  higher  law  ought  not  to  be  ignored,  that 
justice  should  be  tempered  with  mercy." 

DAVID  E.  HAROLD. 


IX 


DEFENSE  OF  EDWARD  SPANGLER, 


BY 


THOMAS    EWHsTG,  JR. 


Mr.  President  and  Gentlemen  of  the  Commission : 

In  presenting  to  you  this  morning  the  case 
of  the  accused,  Edward  Spangler,  I  shall  con 
fine  myself  to  a  discussion  of  the  evidence, 
leaving  whatever  I  may  see  fit  to  say  on  the 
question  of  jurisdiction,  and  on  the  character 
of  the  charges  and  specifications  to  the  occa 
sion  when  my  argument  in  the  case  of  Mudd 
is  pi'esented. 

Preliminary  to  a  consideration  of  the  spe 
cific  items  of  testimony  against  Ed  ward  Spang 
ler,  I  will  briefly  refer  to  and  ask  considera 
tion  of  the  evidence  as  to  his  character,  his 
occupation,  his  relations  to  Booth,  and  Booth's 
habits  of  resorting  to  the  theater  and  frater 
nizing  with  its  employees. 

John  T.  Ford  says,  on  his  cross-examina 
tion: 

Q.  [By  Mr.  Ewing.]  State  what  were  the  du 
ties  of  the  accused,  Edward  Spangler,  on  the 
stage. 

A.  Spangler  was  employed  as  a  stage  hand, 
frequently  misrepresented  as  the  stage  car 
penter  of  the  theater.  He  was  a  laborer  to  as 
sist  in  the  shoving  of  scenery  into  its  place, 
and  removing  it  within  the  groves,  as  the  ne 
cessity  of  the  play  required.  These  were  his 
duties  at  night,  and  during  the  day  to  assist  in 
doing  the  rough  carpenter  work  incidental  to 
plays  to  be  produced. 

Q.  State  his  relations  to  Booth,  as  far  as  you 
have  known  them  to  be  together  at  all. 

A.  He  seemed  to  have  a  great  admiration  for 
Booth.  I  have  noticed  that,  in  my  business  on 
the  stage  with  the  stage  manager.  Booth  was 
a  peculiarly  fascinating  man,  and  controlled 
the  lower  class  of  people,  such  as  Spangler 
belonged  to,  I  suppose,  more  than  ordinary 
men  would — a  man  who  excelled  in  all  manly 
sports. 

And  on  his  second  examination,  Ford  says  : 

Q.  How  long  have  you  known  the  accused, 
Edward  Spangler? 

A.  Nearly  four  years,  I  think. 

Q.  Was  he  in  your  employ  through  that 
time? 

A.  Most  of  that  time. 

Q.  State  what  his  character  is  for  peace, 
good  nature  and  kindness. 

A.  He  was  always  regarded  as  a  very  good- 
natured,  kind,  willing  man.  His  only  fault 
was  occasionally  participating  in  drinking 
276 


liquor  more  than  he  should  have  done — dis 
posed  to  drink  at  times — not  so  as  to  make 
him  vicious,  but  more  to  unfit  him  to  work. 

Q.  Is  he  a  quarrelsome  man  ? 

A.  I  never  knew  him  to  be  but  in  one  quar 
rel  since  he  has  been  in  my  employ,  and  that 
was  through  drink. 

Q.  Was  he  faithful  in  attending  to  his  du 
ties  ? 

A.  Very  ;  a  good,  efficient  drudge ;  always 
willing  to  do  anything;  I  never  found  him  un 
willing. 

Q.  Was  he  a  man  that  was  trusted  with  the 
confidence  of  others  ? 

A.  I  should  think  not  to  any  extent.  He  had 
no  self-respect.  He  was  not  one  who  had  many 
associates.  He  usually  slept  in  the  theater — a 
man  who  rarely  slept  in  a  bed. 

Q.  A  harmless  man  ? 

A.  Very  harmless — always  esteemed  so,  I 
think,  by  all  the  company  around  the  theater; 
often  the  subject  of  sport  and  fun;  but  never, 
except  on  one  occasion,  did  I  know  him  to  be 
engaged  in  a  quarrel. 

Q.  How  was  he  as  to  politics?  Was  he  a 
man  of  intense  feeling? 

A.  I  never  knew  anything  of  his  political 
sentiments  in  this  city.  In  Baltimore  he  was 
known  to  be  a  member  of  the  American  Order. 
I  never  heard  an  expression  of  political  senti 
ment  from  him. 

Gifford  says  [cross-examination] : 

Q.  What  were  his  relations  with  Booth? 

A.  Nothing  that  I  know  of,  further  than 
friendly.  Everybody  about  the  house  was 
friendly  with  him. 

Q.  With  Booth? 

A.  Yes,  sir,  actors  and  all;  they  were  all 
friendly  with  him.  He  had  such  a  very  winning 
way  that  it  made  every  person  like  him.  He 
was  a  good-natured  and  jovial  kind  of  man. 
The  people  about  the  house,  as  far  as  I  know, 
all  liked  him. 

Q.  Was  he  much  in  the  habit  of  frequenting 
the  theater? 

A.  Sometimes  I  have  seen  him  there  for  a 
week,  and  then  he  would  go  off,  and  I  would 
not  see  him  for  a  couple  of  weeks.  Then  he 
would  come  again  for  a  week,  perhaps,  and  af 
ter  that  I  would  not  sec  him  for  a  couple  of 
weeks  or  ten  days,  or  something  of  that  sort. 
When  the  house  was  open,  he  had  free  access 
all  through  the  house. 


ARGUMENT   OF    THOMAS   EWING,  JR. 


277 


Q.  Day  and  night?  j  and  he  (G.)  paid  it  over  to  Booth.     This  item 

A.  Yes,   sir;    except    when    the    house  was  j  is  at  least  as  good  against  Gifford  and  "Pea- 


locked  up  and  the  watchman  was  there  ;  he 
had  no  access  to  it  then. 

Q.  Was  not  Spangler  a  sort  of  a  drudge  for 
Booth? 

A.  He  appeared  so;  he  used  to  go  down  and 
help  him  to  hitch  his  horse  up,  and  such  things, 
I  am  told;  I  have  seen  him  once  or  twice  hitch 
ing  the  horse  up  myself. 

It  is  to  be  remarked  here,  that  a  stable  a  few 
yards  from  the  back  of  the  theater,  and  from 
the  doors  of  the  negro  women,  Mrs.  Turner  and 


nuts"  as  against  Spangler,   and    amounts    to 
nothing  against  either. 

3.  There  was  found  in  Spangler's  carpet- 
sack,  at  his  boarding-house,  on  the  17th  of 
April  (the  day  of  his  arrest),  rope  81  feet  long, 
some  letter  paper,  and  a  shirt-collar.  (Rosch.) 
The  rope  was  offered  in  evidence  ;  the  letter 
paper  and  shirt  collar  were  not.  The  rope  was 
just  like  forty  or  fifty  others  used  about  the 
theater  as  "border  ropes,"  and  to  "haul  up 
lumber  to  the  top  dressing  rooms,  because  the 


Mrs.    Anderson,  was   used   by   Booth   for   his   stairs  are  so  narrow  the  timber  can  not  be  got 
horses  and  buggy,  from  early  in  January  until 
the  assassination,  and  Burroughs  and  Span 
gler,  employed  at  the  theater,  attended  to  the 
drudgery  at  the  stable. 


Burroughs  ("Peanuts")  says  [cross-exam 
ination]: 

Q.  Was  not  Spangler  in  the  habit  of  bridling, 
and  sadling,  and  hitching  up  Booth's  horse? 

A.  When  I  was  not  there  he  used  to  hitch 
him  up. 

Q.  Was  he  not  in  the  habit  of  holding  him, 
too,  when  you  were  not  about? 

A.  Yes,  sir;  and  he  used  to  feed  him  when 
I  was  not  about. 

While  calling  the  attention  of  the  Court  to 
the  evidence  as  to  the  relations  existing  be 
tween  Spangler  and  Booth,  I  desire  it  also  to 
mark  the  fact  that  in  the  great  volume  of  tes 
timony  as  to  the  letters,  conversations,  meet 
ings,  associations,  acts  done,  and  things  said 
which  have  been  adduced  as  evidence  in  these 
cases,  there  is  not  the  slightest  indication  that 
Spangler  ever  met  Booth  except  in  and  around 
the  theater,  that  he  ever  got  a  note  or  a  message 
from  him,  or  ever  saw  or  heard  of  any  one  of 
the  persons  suspected  to  have  been  associated 
with  Booth,  in  either  the  conspiracy  to  capture 
or  that  to  assassinate  the  President  and  the 
heads  of  the  Government. 

Now,  in  the  light  of  the  above-recited  evi 
dence,  I  am  certain  there  is  nothing  shown  to 
have  been  said  or  done  by  anybody  prior  to 
the  moment  of  assassination — outside  of  the 
testimony  of  Sergeant  Joseph  M.  Dye  and 
John  F.  Sleickman — tending  at  all  to  show  that 
Spangler  had  any  intimation  of  Booth's  guilty 
purpose,  or  was  in  any  way,  even  innocently, 
instrumental  in  effecting  it.  Let  us  briefly 
consider  the  several  items  of  evidence  of  acts 
done  and  things  said  prior  to  the  conversation 
with  Booth,  narrated  by  Sleickman,  and  con 
sultation  with  him  noticed  by  Sergeant  Dye, 
which  have  been  adduced  here  as  evidences  of 
Spanglers  guilt. 

1.  He  repaired  Booth's  stable,   in  January, 
Burroughs  says.     What  of  that?      He   was  a 
rough  carpenter,  and  a  drudge  at  the  theater, 
and  the  stable  was  near  at  hand.     The  inci 
dent  is  unworthy  of  further  notice  or  comment. 

2.  He  sold   Booth's  horse  and  buggy  several 
days  before  the  assassination,  at  the  horse  mar 
ket  or  at  a  livery  stable.     (Burroughs'.)     The 
same  witness  says  he  prepared  them  for  sale, 
and  went  with  Spangler,  and  that  Gifford  sent 
them  to  make  the  sale.     And  Gifford  -says   he 


up  that  way."     (Garland).     "The  border  ropes 
are  seventy  to  eighty  feet  Ion  a; — not  less  than 


80  feet.'1  (Lamb.)  "They  are  of  just  the  same 
material,  texture  and  size  as  this."  (Garland, 
Lamb,  Raybold.)  "We  used  such  ropes  as  this 
at  the  time  of  the  Treasury  Guards'  ball,  to 
stretch  from  the  lobby  to  the  wings,  to  hang  on 
it  the  colors  of  different  nations."  (Raybold.) 
"This  rope  has  evidently  been  in  use."  (Car- 
land,  Lamb,  Raybold).  "Sometimes  we  use 
them,  and  a  great  many  of  them,  and  then 
again  we  have  to  take  them  down,  and  they  lie 
up  there  on  the  scene  loft  until  we  need  them 
again."  (Raybold).  From  the  evidence,  it  ap 
pears  probable  Spangler  stowed  away  this  rope 
to  use  on  his  frequent  fishing  excursions  as  a 
crab  line.  Gifford  says: 

Q.  State  whether  you  know  anything  of  the 
accused,  Edward  Spangler,  being  accustomed 
to  crabbing  and  other  fishing  during  the  re 
cesses  of  his  engagement. 

A.  I  never  saw  him  at  it;  but  I  have  known 
him  to  tell  me  that  he  went  crabbing — that  he 
would  go  down  to  the  Neck  on  Saturday  night, 
and  stay  until  Monday  morning,  and  come 
home  on  Monday  morning.  I  have  never  seen 
him  at  it  myself;  but  I  know  that  is  what  he 
told  me,  and  I  have  seen  others  who  said  the 
same  thing — that  they  had  been  crabbing  to 
gether. 

Q.  [Exhibiting  to  the  witness  the  rope]. 
Will  you  state  whether  that  rope  is  such  a  one 
as  might  be  used  in  that  sport? 

A.  They  have  a  line  something  of  this  sort, 
and  small  lines  tied  on  to  it  about  that  dis 
tance  [three  feet],  with  pieces  of  meat  attached, 
and  as  they  go  along  they  trail  it  along.  I 
have  seen  them  at  it,  although  I  have  never 
done  anything  at  it  myself.  They  pull  up  the 
crabs  as  they  go  along,  and  let  the  line  go 
down,  and  dip  them  up  out  of  the  boat. 

And  John  T.  Ford  says: 

Q.  State  whether  or  not  you  know  anything 
of  the  prisoner,  Spangler,  having  been  in  the 
habit  of  going  to  Baltimore,  and  for  what,  dur 
ing  the  spring. 

A.  I  know  that  he  had  lived  in  Baltimore, 
and  buried  his  wife  there  some  eight  or  ten 
months,  or  probably  a  year  ago,  while  in  my 
employ,  and  that  he  considered  Baltimore  his 
home,  and  usually  spent  the  summer  months, 
during  the  vacation  of  the  theater,  there,  chiefly 
in  crabbing  and  fishing.  He  was  a  great  fisher 
and  crabber.  I  know  nothing  positive  of  my 
own  knowledge  as  to  that.  1  only  heard  that. 


received,  and  J.  R.  Ford  receipted  for  the  money,  j  and  we  used  to  plague  him  about  it. 


278 


THE    CONSPIRACY   TRIAL. 


Q.  [Exhibiting  to  witness  the  coil  of  rope 
found  in  a  carpet-sack  at  the  house  where  Spang- 
ler  took  his  meals.]  Look  at  that  rope,  and 
see  whether  or  not  it  might  be  used  for  any 
such  purpose,  and  in  what  way. 

A.  I  suppose  that  could  be  used  as  a  crab 
line,  though  it  is  rather  short  for  that  purpose. 


I  have  seen  some  as  short  used.     I  h 


read 
I  do 


that  the  length  of  this  i«  eighty  feet,  but 
not  know  from  its  appearance. 

Q.    This  is  such  a  rope   as    you   have   seen 
used  by  amateurs  in  that  sport? 

A.  Yes,  sir;  I  have  seen  such  ropes.  I  fre 
quently  go  fishing  in  the  summer. 

While  it  is  unquestionably  true  that,  so  far 


A.  No,  sir.  Spangler  said  It  would  be  a 
nice  place  to  sleep  in  after  the  partition  was 
down.  That  is  all  I  recollect. 

Judge  Advocate  omitted  to  ask  his  witness 
(Jake  Ritterspack)  as  to  this  conversation,  so 
that  it  rests  on  the  evidence  of  "Peanuts" 
only.  I  do  not  think  it  goes  a  great,  way  to 
ward  establishing  Spangler's  connection  with 
the  conspiracy,  or  calls  for  special  comment. 
But  I  will  present  a  set-off  to  this  exhibition 
of  ill  feeling  towai'd  the  President  by  Spangler. 
at  being  called  away  from  his  work  on  the  stage 
to  do  an  extra  job  in  fixing  the  box,  by  his 
equally  strong  exhibition  of  good  feeling,  when, 
as  the  President  entered  the  theat:r,  "lie 


as  the  evidence  goes,  Spangler  may  have  got  clapped  his  hands  and  stamped    his  feet,  and 
this  rope    for    some  purpose    other   than    that  seemed  as  pleased  as   anybody  to  see  the  Pros- 


suggested,  it  is  also  true  that  there  are  many  i  ident  come  in," 


other   uses   for 
imagine  he  got 


which    we    can    more   readily 
it   than   for   the  assassination 


plot.  In  the  devilish  scheme  of  that  conspiracy 
I  can  imagine  no  use  for  a  rope  eighty  feet 
long.  It  could  not  have  been  provided  for 
lariats,  for  there  was  then  no  grass;  nor  for 
halters,  for  it  would  make  a  half  score.  If, 
however,  it  had  been  provided  for  any  purpose 
connected  with  the  conspiracy,  it  would  have 
been  kept  at  the  theater,  or  the  stable,  and 
not  off  at  a  remote  boarding  house.  It  is 
easier  to  imagine  him  frugal  enough  to  provide 
for  his  home,  in  Baltimore,  a  clothes  line  or  a 
bed  cord,  than  foolish  enough  to  provide  for 
the  assassin's  scheme  an  article  so  unnecessary 
as  an  eighty-foot  rope.  My  only  embarrass 
ment  in  this  point  of  the  case  arises  from 
failure  to  show  that  he  fairly  got  title  to  the 
rope;  but  in  this  embarrassment  I  find  conso 
lation  in  reflecting  that  I  am  not  called  on  to 
show  what  he  meant  to  do  with  the  shirt  collar 
and  the  letter  paper — which  would  have  been 
a  much  more  difficult  task. 

4.  Two  boxes  had  always  been  thrown  into 
one  when  the  President  came  to  the  theater  on 
several  former  occasions  during  the  season. 
(H.  Clay  Ford).  Except  while  taking  out  the 
partition,  Spangler  was  not  irt  the  box  as  it  was 
being  prepared  and  decorated.  (H.  Clay  Ford). 
But  Burroughs  says: 

Q.  What  was  he  doing? 

A.  Harry  Ford  told  me  to  go  in  with  Spang 
ler  and  take  out  the  partition  of  the  box,  as  the 
President  and  General  Grant  were  coming  there. 
I  then  went  after  Spangler. 

Q.  Do  you  remember  whether,  while  Spang 
ler  was  doing  that,  he  said  anything  in  re 
gard  to  the  President? 

A.  He  made  remarks  and  laughed. 

Q.  What  were  they? 

A.  He  said,  "  Damn  the  President  and  Gen 
eral  Grant." 

Q.  While  damning  the  President,  or  after 
damning  him,  did  he  say  anything  else? 

A.  I  said  to  him,  "  What  are  you  damning 
the  man  for — a  man  that  has  never  done  any 
harm  to  you?"  He  said  he  ought  to  be  cursed 
when  he  got  so  many  men  killed.  I  stayed 
there  until  they  took  the  partition  out,  and  sat 
down  in  the  box. 

Q.  Did  you  observe  what  else  they  did  in  the 
box? 


as 
(Jamei 


5.  Burroughs  further  says,  between  five  and 
six  o'clock   Friday  evening,   Booth  came  with 
his  horse  to  the  stable  and  called  for  Spangler 
and  wanted    a    halter.     That    Spangler   sent 
Ritterspack  up  stairs    for  one;    that    Maddox 
was  there  with  them,   and  Spangler   wanted  to 
take  the  bridle  and  saddle  off,  but  Booth  would 
not  let  him,  but  that  he  (Spangler)  did  after 
ward  take  them  off.    The  fact  that  Booth  wanted 
the    saddle    and    bridle  left  on,    and  Spangler 
wanted  to  take  them  off,  and  did  subsequently  do 
it,  indicates  that  Spangler  had,  up  to  that  time, 
no  intimation  of  Booth's  laecd  of  the  horse  that 
night. 

6.  I  have  no  doubt  that  the  actual  and  the 
apparent  preparations  in  and  about  the  Pres 
ident's  box  for  the  assassination,  more  than  all 
other  circumstances  combined,  led  the  Govern 
ment  to  arrest  Spangler  and  put  him  on   trial 
as  a  conspirator.     They  were  sufficient  to  direct 
suspicion  against  him  and  to  justify  his  arrest, 
for  in  them  they  appeared  to  the  casual  observer 
the    hand   of  a    mechanic    in    aid    of    Booth's 
plan.     But  the  evidence  has  wholly  cleared  the 
defendant  of  that  suspicion.     These  actual  and 
apparent  preparations  were: 

1.  A  quarter  of  an  inch  hole  bored  through 
the  door  of  box  7,  which  was  the  closed  door 
when  the  two  boxes,  7  and  8,  were  thrown  into 
one  for  the  President's  party.  This  hole  was 
bored  with  a  gimlet,  and  enlarged  on  the  out 
side  with  a  penknife.  (Plant,  Ferguson,  Olin.) 
A  gimlet  was  found  in  Booth  s  room,  after  lie 
fled,  about  the  size  of  the  hole,  but  it  was  lost 
or  mislaid,  and,  therefore,  could  not  be  fitted  to 
the  hole.  Booth  occupied  box  7  one  night,  about 
two  weeks  before  the  assassination.  (Ray- 
bold.)  "He  secured  box  No.  7  three  or  four 
times  during  the  season  before  the  assassina 
tion,  but  I  can  not  say  whether  he  occupied  it  or 
not."  "Sometimes  he  would  use  it  and  some 
times  he  would  not."  "  He  always  engaged  that 
box."  (H.  Clay  Ford.)  The  fact  that  Booth 
apparently  brought  the  gimlet,  bored  the  hole, 
and  carried  the  gimlet  to  his  room  again,  leaves 
this  item  of  testimony  not  only  of  no  effect 
against  Spangler,  but  of  great  significance  in 
his  favor.  For,  if  Booth  had  a  confidant  and 
confederate  in  this  rough  carpenter,  the  work 
would  have  been  done  by  Spangler,  or,  at  least 
with  Spangler's  tools. 

2.  The  hole  in  the  plastering,  two  by  three 


ARGUMENT   OP   THOMAS   EWING,    JR. 


279 


inches,  into  which  the  brace  rested  which  fast 
ened  the  outer  door  leading  from  the  dress-cir 
cle  into  the  little  passage  from  which  the  doors 
open  into  the  private  boxes.  This  hole  was  cut 
with  a  penknife,  apparently,  from  the  scratches 
down  the  wall.  (Rathbone.)  It  was  not  cut 
into  the  brick,  but  about  an  inch,  or  an  inch 
and  a-half,  into  the  plaster.  It  would  take  ten 
or  fifteen  minutes  to  do  it  with  a  penknife.  (Gif- 
ford.)  That  passage  was  pretty  dark,  even 
when  the  door  is  opened.  (H.  Clay  Ford.)  If 
done  with  a  knife,  even  with  the  door  opened, 
it  would  make  no  noise  sufficient  to  attract  at 
tention.  (Gifford.)  This  item,  like  the  last, 
tends  in  Spangler's  favor,  and  not  against  him. 
For  a  carpenter,  with  tools  at  hand,  would  have 
made  the  hole  with  a  chisel,  rather  than  with  a 
penknife.  The  chips  which  fell  from  whittling 
one  side  of  the  gimlet-hole,  and  the  plastering 
from  the  hole  in  the  wall,  were  not  on  the  floor 
next  morning.  (Judge  Olin.)  This  indicates 
that  the  work  was  done  in  advance,  or  on  some 
one  of  the  occasions  when  Booth  occupied  box 
7.  opposite  the  door  of  which  the  hole  in  the 
wall  was  cut. 

3.  A  penknife  was  found  in   the  President's 
box  next  morning.     This   was  used  on  Friday 
afternoon  by  Harry  Ford,  in  cutting  the  strings 
to  tie  iip  the  flags  and  the  picture  of  Washing 
ton,  and  was  left  by  him  accidentally  in  the 
box.     (H.  Clay  Ford.) 

4.  The   screws   which   fastened   the    keepers 
of  the  locks  on   the  doors  of  7  and  8,  were  so 
loose  that  the  doors  could  be  easily  pushed  open, 
even  when  locked.    (Judge  Olin.)     The  theory 
of  the   prosecution   was   that  the  screws  were 
drawn   by    Spangler,    in    advance,    in    aid    of 
Booth's  plan.    Raybold  says  that  several  weeks 
before  the  assassination,  he  burst  open  the  door 
of  box  8  to  admit  Mr.  Merrick,  and  that  after 
that  the  ^ock  was  not  repaired   and  wouldn't 
fasten  tne  door;  but  Merrick  says  it  was  the 
door  of  box  7.     This  conflict  of  evidence   is  of 
no  consequence,  however,  because  O'Bryon,  the 
usher,  says: 

A.  In  box  8  the  keeper  was  wrenched  oif, 
broken  off  in  some  way;  I  do  not  know  how. 
I  was  absent  one  evening;  I  was  at  home  sick, 
and  when  I  came  again  I  found  that  it  was 
broken  off,  but  the  door  itself  was  pretty  tight 
at  the  top,  and  I  never  thought  of  speaking 
about  it.  All  I  had  to  do  was  to  close  the  door, 
and  the  door  itself  would  shut  tight,  and  I  do 
not  know  that  I  ever  said  anything  about  it. 

Q.  When  did  you  first  notice  that  the  keeper 
of  the  door  of  box  8  was  broken? 

A.  On  the  first  occasion  that  I  went  into  the 
box  afterward;  I  can  not  tell  when  that 
was. 

Q.  Was  it  before  the  assassination? 

A.  Oh  yes,  sir,  some  time. 

Q.  About  how  long  before? 

A.  That  I  could  not  say. 

Q.  Which  door  was  used  when  the  Presi 
dential  party  was  occupying  the  two  boxes? 

A.  The  door  of  box  8. 

Q.  How  was  it  generally  left  after  the  party 
entered? 

A.  Always  open. 

Q.  Do   you  know  whether  the  door  leading 


into  the  passage,  which  separates  the  two  boxes 
from  the  wall,  had  a  lock  upon  it? 

A.  No,  sir,  it  had  no  lock. 

And  Plant,  an  expert,  unconnected  with  the 
theater,  who,  a  few  days  ago,  examined  the 
keepers  of  both  boxes,  says: 

A.  I  examined  the  keepers  on  boxes  7  and  8. 
To  all  appearances  they  had  both  been  forced. 
The  woodwork  in  box  8  is  shivered  and  splin 
tered  by  the  screws.  In  box  7  I  could  pull  the 
screw  with  my  thumb  and  finger;  the  tap  was 
gone  clear  to  the  point.  I  could  force  it  back 
with  my  thumb.  In  box  4,  which  is  directly 
under  box  8,  the  keeper  is  gone  entirely. 

Q.  State  whether  or  not,  according  to  your 
professional  opinion,  the  keepers  of  the  locks 
in  boxes  7  and  8  were  made  loose  by  an  instru 
ment,  or  by  force  applied  to  the  outside  of  the 
doors? 

A.  I  should  judge  by  force. 

Q.  Is  there  any  appearance  of  an  instrument 
having  been  used  to  draw  the  screws  in  either 
of  those  boxes? 

A.  I  could  see  no  such  evidence. 

5.  A  square  pine  stick,  about  four  feet 
long,  and  beveled  at  one  end,  with  which  the 
outer  door  was  braced,  was  picked  up  in  the 
box  that  night.  (Jaquette.)  Through  the  bev 
eled  end  are  driven  two  lath  nails,  bent  at  the 
ends,  which  Giiford,  the  carpenter,  says  might 
have  been  put  there  to  hold  that  end  against  the 
door,  but  which  obviously  were  not  put  there 
for  any  such  purpose,  as  they  were  wholly  un 
necessary  for  that  purpose,  and  were  not  driven 
into  the  door.  In  the  other  end  are  two  large 
nails,  which,  he  says,  could  have  been  of  no  use 
to  hold  the  butt  end  in  the  hole.  The  stick  had 
evidently  been  prepared  for  some  other  use.  It 
is  doubtful  whether  it  was  the  stick  that  Booth 
used,  as  it  was  found,  not  in  the  passage,  but 
in  the  box  (Jacquette) ;  and  Major  Rathbone 
says:  "I  found  the  door  barred  by  a  heavy 
piece  of  plank;"  and  "My  impression  was,  it 
was  a  different  piece  of  wood."  Whether  this 
is  in  fact  the  bar  is  of  no  apparent  importance. 
The  members  of  the  Court  have  observed  that 
the  wall  forms  with  the  door,  when  shut,  an 
acute  angle,  and  are  doubtless  satisfied  that  a 
strong  stick  or  piece  of  plank,  anywhere  from 
three  to  five  feet  long,  would  answer  well  to  bar 
the  door.  But  if  this  was  the  bar,  it  was  not 
prepared  by  Spangler  for  the  purpose,  for  he,  a 
carpenter,  would  not  have  driven  the  nails  in 
the  butt  end. 

These  three  acts  of  preparation — the  boring 
the  hole  in  the  door,  the  cutting  the  hole  in  the 
plaster,  and  providing  the  brace — were  acts  of 
mere  drudgery,  which,  if  Spangler  had  been  a 
conspirator,  Booth  would  naturally  have  called 
on  him  to  do;  and  the  fact  that  Booth  certainly 
did  one,  and  probably  did  the  others,  and  the 
presumption  that  Spangler  did  neither,  tend 
strongly  to  the  conclusion  that  he  was  not  in 
the  plot  when  these  preparations  were  made. 

Ritterspack,  in  his  last  examination,  said 
that  just  before  he  and  Spangler  went  home  to 
supper,  on  the  day  of  the  assassination,  and 
about  six  o'clock  in  the  evening,  they  were  at 
work  together  on  the  stage,  and  saw  a  stranger 
in  the  dress  circle  smoking  a  cigar.  He  called 


280 


THE    CONSPIRACY   TRIAL. 


Spangler's  attention  to  him,  but  lie  said  "he 
had  no  charge  on  that  side  of  the  theater,  and 
no  right  to  order  the  man  out."  That  presently 
the  stranger  entered  one  of  the  lower  private 
boxes  opposite  the  President's  box,  when  Spang- 
ler  said  something,  in  consequence  of  which 
the  man  left.  The  Assistant  Judge  Advocate 
objected  to  the  witness  saying  what  it  was 
Spangler  said  to  the  stranger  to  make  him  leave. 
Doubtless  this  man  was  there  inspecting  the 
President's  box  for  Booth,  and  possibly  cutting 
the  hole  in  the  wall,  and  bringing  in  the  bar. 
Had  Spangler  been  in  the  conspiracy,  would 
Booth  have  needed  the  services  of  this  inspector 
and  assistant? 

We  now  come  to  the  consideration  of  the  tes 
timony  of  Sleickman,  referred  to  above. 

Q.  Do  you  know  J.  Wilkes  Booth? 

A.  Yes,  sir. 

Q.  Did  you  or  not  see  him  on  that  night,  and 
if  so,  at  what  hour  and  under  what  circum 
stances? 

A.  I  saw  him  about  nine  o'clock,  I  guess  it 
was.  He  came  up  on  a  horse  and  came  in  a 
little  back  door  to  the  theater.  Ned  Spangler 
was  standing  there  by  one  of  the  wings,  and 
Booth  said  to  him,  "  Ned,  you  will  help  me  all 
you  can,  won't  you  ?"  and  Ned  said,  "  Oh,  yes." 

Q.  I  understand  you  to  say  that  as  Booth 
came  up  to  the  door  with  his  horse,  he  said 
that? 

A.  When  he  came  in  the  door  after  he  got  off 
the  horse. 

Q.  How  long  was  that  before  the  President 
was  shot? 

A.  I  should  judge  it  to  be  about  an  hour  and 
a-half. 

Q.  Did  you  observe  the  horse  afterward,  by 
whom  it  was  held? 

A.  I  did  not. 

Q.  You  did  not  see  Booth  any  more? 

A.  I  just  got  a  glimpse  of  him  as  he  was 
going  out  the  first  entrance  on  the  right-hand 
side. 

Q.  What  hour  was  that  when  you  saw  him 
going  out  of  the  first  entrance? 

A.  About  half-past  ten  o'clock,  I  think.  That 
was  after  he  shot  the  President. 

Q.  How  close  were  you  to  Booth  and  Spang 
ler  when  Booth  said  those  words  to  him  on  en 
tering  the  theater,  from  the  door? 

A.  About  as  far  as  I  am  from  you.  [A  dis 
tance  of  about  eight  feet.] 

Q.  How  far  was  Spangler  from  him? 

A.  Spangler  was  standing  as  close  to  him  as 
the  gentleman  next  to  you  is  to  you.  [About 
three  feet.] 

Q.  He  spoke,  then,  in  a  loud  voice? 

A.  Yes,  sir. 

Q.  Could  he  have  seen  you  from  where  he 
was  standing? 

A.  Oh,  yes. 

Now  this  evidence  is  flatly  contradicted  by 
the  evidence  of  J.  L.  Debonay,  the  "  responsi 
ble  utility  "  man. 

In  his  second  examination  he  says: 

Q.  Did  you  see  anything  of  Mr.  Sleickman 
when  Booth  said  he  wanted  Spangler  to  hold 
his  horse,  and  you  went  over  tor  Spangler? 

A.  They    were   both    standing   at    the   same 


j  place,  very  near,  close  to  each  other,  on  the  op 
posite  side  of  the  stage. 

Q.  That  is,  on  the  left-hand  side  of  the  stage 
looking  to  the  audience? 

A.  Yes,  sir;  and  the  same  side  that  the 
President's  box  was  on. 

Q.  Did  Mr.  Sleickman  go  over  to  the  door  ? 

A.   I  did  not  see  him  go  over  there. 

Q.  Did  you  see  Spangler  go  over? 

A.  Yes,  sir;  because  I  went  right  behind 
him,  pretty  close. 

Q.  Did  you  see  Spangler  go  out  of  the  door? 

A.  Yes,  sir. 

Q.  Did  you  see  Booth  then  come  in? 

A.  I  did. 

Q.  How  long  was  it  after  Spangler  went  out 
before  Booth  came  in  ? 

A.  About  a  minute,  or  a  minute  and  a-half — 
not  longer  than  that. 

Q.  How  far  were  you  from  the  door? 

A.  I  was  about  half-way  between  the  back 
door  and  the  green-room — about  eighteen  or 
twenty  feet,  I  suppose. 

Q.  Did  you  hear  any  conversation  between 
Spangler  and  Booth? 

A.  I  did  not. 

Q.  Did  you  hear  anything  to  indicate  that 
there  was  conversation  going  on  between  them? 

A.   No,  sir. 

Q.  Did  Booth  meet  Spangler  inside  of  the 
door? 

A.  He  was  standing  at  the  door;  he  was  on 
the  outside.  The  door  was  about  half  open 
when  Spangler  went  out. 

Q.  Would  you  have  seen  any  person  who  fol 
lowed  Spangler,  and  went  out,  too? 

A.  Yes,  sir ;  I  think  I  should  have  seen  any 
one. 

Q.  And  you  did  not  see  Sleickman? 

A.  I  did  not. 

Q.  When  Booth  came  in,  what  did  he  do? 

A.  He  went  under  the  stage  to  the  oppo 
site  side,  and  he  went  out  the  side  door. 

Q.  How  do  you  know  that  he  went  out  of  the 
side  door? 

A.  Because  I  went  under  the  stage  and 
crossed  to  the  opposite  side  myself. 

Q.  Did  you  go  under  with  Booth? 

A.  Yes,  sir ;  I  went  under  with  him. 

It  may  be  suggested  that  the  conversation 
between  Booth  and  Spangler  occurred  at  some 
time  during  the  play,  prior  to  the  time  when 
Booth  rode  up  to  the  back  door  and  called  for 
Spangler  to  hold  his  horse.  But,  if  tliat  be 
claimed,  I  assert  that  the  evidence  shows  con 
clusively  that  Booth  came  to  the  door  with  his 
horse  but  once  that  night  during  the  play.  And 
in  support  of  that  assertion  I  here  refer  the 
Court  to  each  item  of  evidence  (except  that  of 
Sleickman  and  Debonay,  the  conflicting  wit 
nesses),  as  to  Booth  entering  the  theater  by  the 
back  door  during  the  performance. 

1.  John  Miles,  colored,  whose  place  was  in 
the  flies,  from  which  he  could  see  out  of  the 
window  down  into  the  alley  by  the  door,  says : 

Q.  Did  you  see  J.  Wilkes  Booth  there? 

A.  I  saw  him  when  he  came  there. 

Q.  What  hour  did  he  come?  Tell  us  all  you 
saw. 

A.  He  came  there,  I  think,  between  nine  and 


ARGUMENT   OF   THOMAS    EWING,   JR. 


281 


ten  o  clock,  and  he  brought   a  horse  from  the  I  very    low  voice    to    this    Maddox,   and   I   saw 

stable  and  came  to  the  back  door  and  called  j  Maddox  reach  out  his  hand  and  take  the  horse; 

"Ned  Spaugler  "  three  times  out  of  the  theater. 

Ned  Spangler   went  across  the  stage  to  him. 

After  that  I  did  not  see  what  became  of  Booth, 

and  never  noticed  him  any  more  until  I  heard 

the  pistol  go  off. 

Cross-examined  by  Mr.  EWING: 

Q.  Was  the  play  going  on  when  Booth  rode 
ap  and  called  for  Spangler? 

A.  They  had  just  closed  a  scene,  and  were 
getting  ready  to  take  off  that  scene  at  the  time 
/ie  called  for  Spangler.  Spangler  was  at  the 
second  groove  then,  and  pushed  a  scene  across. 
Booth  called  him  three  times. 

Q.  Where  were  you  then  ? 

A.  Up  on  the  flies,  about  three  and  one-half 
stories  from  the  stage. 

Q.  Do  you  know  who  held  the  horse  ? 

A.  John  Peanuts  held  him;  he  was  lying  on 
a  bench,  holding  the  horse,  when  I  noticed 
him.  I  was  at  the  window  pretty  nearly  all 
the  time  from  the  time  Booth  brought  the  horse 
until  he  went  away.  Every  time  I  looked  out 
the  window,  John  Peanuts  was  lying  on  the 


bench  holding  the  horse, 
else  hold  him. 

2.  Joseph  Burroughs 


I  did  not  see  any  one 
Peanuts")  says: 


Q.  Did  you  see  him  on  the  afternoon  of  the 
14th  of  April  ? 

A.  I  .saw  him  when  he  brought  his  horse  to 
the  stable,  between  five  and  six  o'clock. 

Q.  Did  you  see  him  again  at  a  later  hour 
that  evening? 

A.  I  saw  him  on  the  stage  that  night. 

Q.  Did  you  or  not  see  him  when  he  came 
with  his  horse,  between  nine  and  ten  o'clock 
that  night? 

A.  No,  sir;  I  did  not  see  him  when  he  came 
up  the  alley  with  his  horse. 

Q.  Did  you  see  the  horse  at  the  door  ? 

A.  I  saw  him  when  Spangler  called  me  out 
there  to  hold  the  horse. 

Q.  Did  you  see  Booth  when  he  came  there 
with  his  horse? 

A.  No,  sir;  I  did  not  see  him. 

Q.  Did  you  hear  him  call  for  Ned  Spangler  ? 

A.  No,  sir;  I  heard  Debonay  calling  Ned, 
that  Booth  wanted  him. 

3.  Mary  Ann  Turner  (colored)  says: 

Q.  Did  you  know  John  Wilkes  Booth? 

A.  I  knew  him  when  I  saw  him. 

Q.  Will  you  state  what  you  saw  of  him  on 
the  afternoon  of  the  14th  of  April  last? 

A.  That  afternoon  I  saw  him,  I  think,  to  the 
best  of  my  recollection,  between  three  and  four 
o'clock,  standing  in  the  back  door  of  Ford's 
Theater,  with  a  lady  by  his  side ;  I  did  not  take 
any  particular  notice  of  him  at  that  time,  but  I 
turned  from  the  door,  and  I  saw  no  more  of 
him  until,  to  the  best  of  my  recollection,  be 
tween  seven  and  eight,  or  near  about  eight, 
o'clock  that  night,  when  he  brought  a  horse  up 
to  the  back  door,  and  opened  the  door,  and 
called  for  a  man  by  the  name  of  "Ned"  three 
times,  to  the  best  of  my  recollection,  not  more 
than  three  times;  this  uNed"  came  to  him, 
and  I  heard  him  say  to  "Ned,"  in  a  low  voice, 
"Tell  Maddox  to  come  here."  I  then  saw 
Maddox  come;  he  (Booth)  said  something  in  a 


but  where    "Ned"   went  I  can   not  tell;    this 
Booth  went  on  into  the  theater. 

Cross-examined  by  Mj\  EWING  : 

Q.  How  far  is  your  house  from  the  back 
door  of  the  theater? 

A.  My  front  door  fronts  to  the  back  of  tho 
theater;  it  comes  out  into  the  open  alley, 
which  leads  up  to  the  door;  there  is  another 
house  between  mine  and  the  theater;  the  two 
houses  are  adjoining,  and  my  house  stands  as 
far  from  the  door  of  the  theater  as  from  here 
to  the  post.  [About  twenty-two  feet,]  I  think 
it  would  allow  that  space  for  the  two  houses. 

4.  Mary  Jane  Anderson. 

Q.  Does  your  house  adjoin  that  of  Mrs. 
Turner,  who  has  just  testified? 

A.  Yes,  sir;  my  house  and  her's  are  adjoin 
ing.  He  came  up  to  the  theater  door,  this  gen 
tleman  did,  with  the  horse  by  the  bridle.  He 
pushed  the  door  open,  and  said  something  in 
a  low  tone,  and  then  in  a  loud  voice  lie  called 
"Ned,"  four  times.  There  was  a  colored  man 
up  a*,  the  window,  and  he  said:  "Mr.  Ned, 
Mr.  Booth  calls  you."  That  is  the  way  I  came 
to  know  it  was  Mr.  Booth.  It- was  dark,  and 
I  could  not  see  his  face/-  -When  Mr.  Ned  came, 
Booth  said  to  him,  in  a  low  tone,  "Tell  Maddox 
to  come  here."  Then  Mr.  Ned  went  back,  and 
Maddox  came  out. 

Q.  How  long  was  it  from  the  time  that  Booth 
rode  up  there  until  the  people  said  he  had  shot 
the  President? 

A.  I  suppose  it  was  about  an  hour — not 
quite  an  hour — from  the  time  he  came  up  there 
to  the  time  they  said  the  President  was  shot.  I 
think  it  was  almost  an  hour,  but  I  do  not  think 
it  was  quite  an  hour. 

These  six  witnesses  (including  Sleickman 
and  Debonay)  are  all  who  have  testified  to 
Booth's  coming  to,  or  entering,  the  back  door 
of  the  theater  that  night.  Every  one  of  them, 
except  Sleickman  and  Burroughs,  refers  to  his 
calling  loudly  several  times  for  Spangler.  Bur 
roughs,  who  was  too  remote  from  the  door  to 
hear  Booth  calling  for  Spangler,  fixes  it  as 
being  the  same  time,  by  saying  that  he  heard 
Debonay  repeat  Booth's  call  for  Spangler;  and 
Sleickman  says  it  was  when  Booth  came  up* 
with  his  horse  to  the  back  door  that  he  saw  him 
and  heard  him  talk  to  Spangler.  If  Booth  had 
previously,  during  the  play,  come  up  the  alley 
to  the  back  door  with  his  horse,  Mrs.  Turner, 
Mrs.  Anderson  and  John  Miles,  from  their  po 
sitions  adjacent  to  and  overlooking  that  part 
of  the  paved  alley,  would  certainly  have  seen 
or  heard,  and  noticed  him  or  the  horse;  and  if 
Booth  had  entered  the  theater  previously  during 

talk 
that 

small,  thronged  stage,  would  have  seen  or  hoard 
him.  It  would  have  been,  of  itself,  a  trifling 
incident;  but  on  the  day  following  the  assas 
sination,  when  it  was  established  that  Booth 
was  the  murderer,  I  venture  to  say  there  was 
not  a  man  or  woman  in  the  city  of  Washing 
ton,  who  ever  saw  Booth,  who  did  not  recall 
when  and  where  he  or  she  saw  the  assassin 
last.  And,  therefore,  I  feel  safe  in  asserting 


the  play,  and   stopped    by  the  scenes  to 
to    Spangler,    surely    some   one   else,    on 


282 


THE   CONSPIRACY   TRIAL. 


that,  had  he  rode  up  to  the  back  door  and 
gone  into  the  theater  at  any  other  time  that 
night  than  the  one  time  fixed  by  the  concur 
rent  testimony  of  so  many  witnesses,  we  would 
have  learned  it  in  this  investigation  ;  for  every 
step  the  villain  took  about  the  theater  that 
night  is  recounted  in  the  evidence  before  us. 

If,  then,  he  was  there  but  once,  what  cre 
dence  can  be  given  to  Sleickman's  evidence  as 
to  Booth  s  statement  to  Spangler  and  the  reply? 
I  claim  that  the  evidence  overthrows  it.  If 
the  issue  as  to  it  were  to  be  settled  by  a  con 
sideration  only  of  Sleickman's  evidence  with 
the  flatly  contradictory  evidence  of  Debonay,  I 
might  reasonably  claim  an  even  balance  of  tes 
timony,  as  the  two  witnesses  were  apparently 
equally  credible.  But  Debonay's  evidence  is 
consistent  with,  and  supported  by,  the  other 
evidence  of  the  case,  and  Sleickman's  is  not. 
For,  if  Sleickman's  statement  be  true,  some 
other  man,  _  not  disclosed  by  the  proof,  must 
have  held  Booth's  horse  while  this  colloquy  was 
going  on  in  the  theater.  Mrs.  Turner,  in  her 
confused  statement,  says,  in  substance,  that 
after  Booth  came  up,  Spangler  first  held  the 
horse  a  few  minutes,  and  from  that  time  it  was 
held  by  the  same  man  who  held  him  at  the 
time  of  the  assassination,  to-wit,  Burroughs, 
whom  she  mistook  for  Maddox,  one  of  the  wit 
nesses  for  the  prosecution.  She  testifies  the 
horse  was  held  all  the  time,  and  if  any  one 
else  had  held  him,  surely  he  would  not  have 
escaped  the  vigilant  and  incessant  search  of 
the  Government. 

But  grant  Booth  did  say  to  Spangler,  "Ned, 
you  will  help  me  all  you  can,  won't  you?  "  and 
Ned  replied,  "Oh,  yes,"  all  said  in  a  loud 
tone,  and  in  sight  and  hearing  of  Sleickman. 
If  there  were  preceding  incidents  in  proof 
showing  Spangler's  knowledge  of  Booth's  guilty 
purpose,  this  alleged  colloquy  might  be  regarded 
as  a  link  in  a  chain  of  evidence  against  him. 
But  of  itself,  unaccompanied  with  the  slightest 
evidence  or  ground  of  presumption  of  Spang 
ler's  previous  knowledge  of  Booth's  purpose, 
and  followed  (as  we  will  see  in  this  discussion 
of  the  evidence),  by  not  the  slightest  act,  or 
arrangement,  or  apparent  intent  of  co-opera 
tion  in  the  crime,  or  the  escape,  it  should,  I 
think,  be  treated  by  the  Court  (if  it  be  thought 
to  have  occurred),  as  on  Spangler's  part  noth 
ing  but  the  unwitting  response  of  a  drudge  to 
a  remark  of  one  he  looked  up  to  as  a  superior, 
whom  he  was  accustomed  to  serve,  and  of  which 
he  knew  not  the  special  intent.  Had  he  known 
Booth's  purpose,  and  meant  to  aid  his  escape, 
would  he  not  have  got  a  substitute  to  shove 
the  scenes,  and  been  in  the  passage,  or  at  the 
door,  ready  to  help  baffle  the  pursuers?  Or 
would  he  not,  at  least,  when  he  heard  the  pis 
tol  fired,  have  crossed  to  the  passage  and 
opened  the  door  which  Withers,  and  Ritterspack, 
and  Stewart  say  was  shut  when  Booth  reached 
it  ?  Is  it  possible  he  would  have  stood  motion 
less  (as  Ritterspack  and  James  say  he  did),  re 
mote  from  the  passage  and  the  door,  and  thus 
leave  Booth  to  the  hazard  of  his  flight,  un 
aided?  Would  he,  as  Debonay  says  he  did, 
instead  of  following  Booth  to  see  him  off,  have 
shoved  back  the  scene  behind  which  he  stood, 


so  as  to  allow  free  exit  for  the  crowd  who 
sprang  on  the  stage  to  follow  and  catch  the 
assassin,  and  himself  run  for  water  for  the 
President?  His  whole  conduct  before  and  after 
the  shot  was  fired  shows  that  if  that  remark 
was  in  fact  made  to  him  by  Booth,  he  was 
wholly  ignorant  of  its  imputed  meaning. 

I  here  desire  to  call  attention  of  the  Court 
to  a  fact  in   the  evidence  which,  to  my  mind, 
conclusively  shows  that  if  Booth  did  in  fact  say 
that    to    Spangler,    and    get   that    reply,    still 
Spangler  neither  knew  Booth's  criminal  pur 
pose  nor  was   a  party  to  its  execution.     That 
fact  is,  that  Booth  knocked  "Peanuts"  down  as 
he  took  the  horse  from  him,  and  fled.     Now,  I 
assert   that  if  the  evidence  shows   that  Booth 
intended  for  Spangler,  or  assigned  to  him  any 
part  to  perform  in    the   conspiracy,  it  was  to 
hold  his  horse  in  the  alley  at  the  back  door, 
and  nothing  else  whatever.     That  Spangler  failed 
to  do  that,  but  stuck  to  his  duties  on  the  stage, 
is  evidence  drawn  from  his  conduct  that  he  was 
no  party   willing   to  aid  and  abet    the  crime. 
That  Booth  knocked   the  horse  holder  down  is 
evidence  equally  conclusive  from  his    conduct 
that    Spangler    was    not    intrusted    with     the 
secret  of  the  crime  to  be  committed,  nor  relied 
on   to  knowingly  aid  and  abet  it.     For  he,  in 
I  all  probability,  thought  it  was   Spangler,  and 
not  "Peanuts,"  who  held  his  horse.     He  had 
left  him  with  Spangler,  who  did  not  call  "Pea 
nuts"  to  hold  him  until  Booth  had  passed  under 
the  stage  and  out  the  side  entrance  (Debonay), 
to  return   on  the  stage  no  more  until  fleeing 
from  his  pursuers.     As  Booth  fled  he  could  not 
have  seen  Spangler  on  the  stage;  and  the  night 
was  so  dark  he  did  not  distinguish  "Peanuts" 
from   Spangler,  both  being  of    near  the  same 
higlit   and  frame.     It  was   so    dark   that  Mrs. 
!  Simms   and  Mrs.  Turner  both  took  "Peanuts" 
,  for  Maddox — a  man  less  like  him  than  Spang 
ler    is — though  he   was   but  a   few    yards    off, 
I  holding  the  horse  an  hour.     And  surely  Booth, 
|  rushing  from  the  glare  of  the  stage,  into  the 
j  blinding  dai'kness  of  that  night,  wild  with  ex- 
j  citement  and  passion,  would  not  scrutinize  the 
features  of  his  horse  boy.     He  knocked  "Pea 
nuts"  over,  supposing  him  to  be  Spangler,  thus 
I  showing  a  fear  that    Spangler  would    pursue 
j  him,  and   thus,  in  the  midst  of  his  own  crime, 
I  giving  us  convincing  evidence  of   Spangler's 
innocence. 

The  other  item  of  evidence  tending  to  show 
that    Spangler    knew  of  Booth's    purpose  and 
I  was  consenting,  advising,  or  aiding  to  accom- 
j  plish  it,  is  the   testimony  of  Sergeant  Jos.  M. 
I  Dye,  which  I  will   now   consider.     He  says   he 
1  saw   a    roughly-dressed  man  standing  on    the 
:  pavement,  just  outside  the  door  of  the  theater, 
from    twenty-five  or  thirty  minutes  past  nin?, 
till  ten  minutes  past   ten,  by  the   time   of  the 
theater  clock.     That   Booth    frequently    whis 
pered  to   this  man  dir.  ing  that  time,  and  that 
just  as  the  call  was  m;u.i<>  by  Booth's  other  and 
unknown   companion,   at  ten  minutes  past  ten, 
from  the  clock  in  the  theater  hall.  Booth  whis 
pered  to  this  roughly-dressed  man  and  entered 
the  theater.     The  roughly-dressed  man  was  not 
seen    to   leave  by    the    Sergeant,  who   himself 
i  at  thah  time  left  and  went  with  a  friend  to  a 


ARGUMENT  OF  THOMAS  EWING,  JR. 


283 


grocery  around  the  corner,  where  in  fifteen 
minutes,  or  less,  news  came  that  the  President 
was  shot.  He  could  describe  no  article  of  the 
roughly-dressed  man's  clothing,  but  a  black 
slouch  hat,  thought  him  five  feet  eight  or  nine 
inches  high,  heavily  built,  and  dressed  in  worn 
clothes.  He  recollects  distinctly,  and  asserts 
most  postively,  that  this  man  wore  a  heavy  black 
mustache.  He  did  not  recollect  the  color  of  his  eyes, 
his  hair,  or  any  of  his  clothes,  nor  knew  whether 
he  wore  an  overcoat.  He  says  (pointing  to 
Spangler),  "  If  that  man  had  a  mustache,  it 
would  be  just  the  appearance  of  the  face  ex 
actly." 

It  is  fortunate  for  the  accused  that  this  wit 
ness  states  with  certainty  three  circumstances, 
by  means  of  which  the  theory  that  this  man 
was  Spangler  has  been  completely  over 
thrown. 

1.  He  says  (six  times  in  the  course  of   his 
evidence)  that  the  man  he  saw  had  a  mustache, 
and  said  also  it  was  black  and  heavy. 

Miles,  Sleickman,  Burroughs,  Maddox  and 
Gilford,  witnesses  for  the  prosecution,  who  all 
saw  Spangler  during  the  play,  said  he  wore  no 
mustache  then,  and  they  never  saw  him  wear  one. 
Maddox  saw  him  in  his  place  three  or  four 
minutes  before  the  assassination,  and  then  he 
wore  none.  Buckingham,  Withers,  and  Fergu 
son,  witnesses  for  prosecution,  and  Goen- 
ther,  Harry  Ford,  and  others,  for  defense,  who 
saw  him  daily,  say  they  never  saw  him  wear 
ing  a  mustache.  If  lie  had  been  in  front  of  the 
theater  that  night  for  three-quarters  of  an  hour, 
wearing  a  heavy  black  mustache,  red-headed  as 
he  is,  no  one  can  doubt  that  many  of  the  em 
ployees  and  habitues  of  the  theater  who  knew 
him  would  have  noticed  his  grotesque  disguise, 
and  having  their  attention  drawn  to  the  sub 
ject  by  the  daily  publication  of  testimony  on 
this  point,  would,  have  offered  themselves  as 
witnesses  against  him. 

2.  Sergeant   Dye   also    says,  this    man    re 
mained  on  the  pavement  just  at  the  front  en 
trance  of  the  theater  constantly  from  twenty- 
five  or  thirty  minutes  past  nine  until  ten  min 
utes  past  ten  by  the  theater  clock,  including  a 
part  of  the  second  act,  the  whole  interval  be 
tween  the  second  and  third  acts,  and  that  part 
of  the  third   act  before  ten  minutes  past  ten — 
for  he    speaks    of  the  "rush"  corning  down  to 
drink  after  he  had  been  there  some  time,  and 
returning  some  time  before  he  left. 

If  the  man  had  been  Spangler,  Buckingham, 
the  door-keeper,  who  was  at  the  ticket  win 
dow  all  the  evening,  would  in  all  probability 
have  noticed  him;  or  Maddox,  who  was  in  front 
of  and  in  the  ticket  office  during  the  evening, 
but  neither  saw  him.  During  all  the  interval 
between  the  acts,  before  he  held  Booth's  horse, 
Burroughs  (Peanuts)  was  in  front  of  the  thea 
ter,  but  did  not  see  him.  Sleickman  was  in 
front  ten  or  fifteen  minutes  belore  the  close  of 
the  second  act,  and  he  did  not  see  him  there  ; 
nor  did  Debonay,  who  was  on  the  pavement  front 
about  five  minutes  before  the  assassination. 

Gifford,  on  cross-examination,  says: 

Q.  You  were  in  front  of  the  theater  during 
the  performance  of  the  second  act? 

A.  During  the  performance  of  the  second  act 


I  was  in  front,  I  think,  to  the  best  of  my  knowl 
edge. 

Q.   All  the  time  ? 

A.  No,  sir  ;  not  all  the  time.  I  would  walk 
in,  and  may  be  stay  five  or  ten  minutes,  and 
then  walk  out  again. 

Q.  State  whether  or  not  you  saw  the  prisoner, 
Spangler,  at  any  time  during  that  play,  in  front 
of  the  theater. 

A.  I  did  not  see  him  in  front  of  the  theater. 

We  have  not  only  this  negative  evidence  of 
persons  who  were  in  front  of  the  theater,  or  in 
the  passage  during  the  time  named  by  Sergeant 
Dye,  but  we  have  also  further  negative  evi 
dence  on  the  same  point  in  the  fact  that  Spang 
ler  is  shown,  by  many  witnesses,  not  to  have 
been  missed  from  his  place  that  night,  and 
that  his  duties  on  the  stage  were  such  as  to  re 
quire  his  constant  presence  at  his  post,  and 
make  an  absence  of  three-quarters  of  an  hour 
impossible,  without  marring  the  play  and  at 
tracting  attention  of  employees  and  actors  to 
the  fact  of  his  absence.  On  this  point  John  T. 
Ford,  the  proprietor  of  the  theater,  says: 

Q.  State  whether  or  not  his  duties  were  such 
as  to  require  his  presence  upon  the  stage  dur 
ing  the  whole  of  the  play. 

A.  Strictly  so.  His  absence  for  a  moment 
might  imperil  the  success  of  the  play,  and 
cause  dissatisfaction  to  the  audience.  It  is  very 
important  to  the  effect  of  a  play  that  the  scenery 
should  be  well  attemded  to  in  all  its  changes ; 
and  he  is  absolutely  important  there  every  mo 
ment  from  the  time  the  curtain  rises  until  it 
falls.  There  are  intervals,  it  is  true,  but  he  can 
not  judge  how  long  or  how  brief  a  scene  may  be. 

Q.  What  were  his  duties  in  the  intervals  be 
tween  the  scenes? 

A.  To  be  prepared  for  the  next  change ;  to 
be  ready  at  his  scene;  to  remain  on  the  side 
where  the  stage  carpenter  had  assigned  him  as 
his  post  of  duty.  Emergencies  often  arise 
during  an  act  that  require  extra  service  of  a 
stage  hand. 

But,  though  the  negative  evidence  above  re 
ferred  to  would,  in  my  opinion,  be  quite  suifi- 
ient  to  relieve  Spangler  of  the  suspicion  of  be 
ing  the  person  seen  by  Sergeant  Dye,  fortunately 
an  alibi  is  shown  conclusively  by  the  concurrent 
testimony  of  many  witnesses  for  the  prosecu 
tion  and  the  defense,  which  testimony  shows, 
beyond  all  doubt,  that  he  was  not  only  not  in 
front  of  the  theater  in  consultation  with  Booth, 
but  was,  throughout  the  play,  until  the  fatal 
shot,  at  his  post  on  the  side  opposite  and  most 
remote  from  the  passage  and  the  door  by  which 
the  murderer  escaped — on  that  part  of  the 
stage  where,  from  his  position,  he  would  be 
least  able  to  aid  the  villain's  flight. 

John  Miles  (colored)  says  he  saw  Booth  ride 
up  to  the  back  door  about  three-quarters  of  an 
hour  before  the  President  was  shot,  and  heard 
him  call  Spangler  three  times:  and  that  he 
looked  down  from  the  "flies/7  and  saw  Spang- 
gler  in  his  place,  shoving  a  scene  across  on  the 
second  groove.  Debonay  says  : 

When  Booth  rode  up  he  came  to  the  alley  door 
and  called  for  Spangler;  he  called  me  first;  but 
whether  he  came  on  a  horse  or  not,  I  do  not 
know.  He  said  to  me,  "Tell  Spangler  to  come 


284 


THE    CONSPIRACY   TRIAL. 


to  the  door  and  hold  my  horse."  I  did  not  see 
a  horse,  though. 

Q.  What  did  you  do? 

A.  I  went  over  to  where  Mr.  Spangler  was, 
on  the  left  hand  side,  at  his  post,  and  called 
him  from  his  post.  Said  I,  "Mr.  Booth  wants 
you  to  hold  his  horse."  He  then  went  to  the 
door,  went  outside,  and  was  there  about  a 
minute,  and  Mr.  Booth  came  in.  He  asked  me 
if  he  could  get,  across  the  stage.  I  told  him  no, 
the  dairy  scene  was  on ;  that  he  would  have  to 
go  under  the  stage,  and  come  upon  the  other 
side.  About  the  time  that  he  got  upon  the  other 
side,  Spangler  called  to  me,  "  Tell  Peanut  John 
to  come  here  and  hold  this  horse;  I  have  not 
time;  Mr  Gifford  is  out  in  the  front  of  the  the 
ater,  and  all  the  responsibility  of  the  scenes  lies 
on  me. "  I  went  on  the  other  side  and  called 
John,  and  John  went  there  and  held  the  horse,  and 
Spangler  came  in  and  returned  to  his  post  again. 

Q.  Did  you  see  Spangler  any  more  that 
evening  ? 

A.  I  did,  three  or  four  times  that  evening. 

Q.  Where? 

A.  On  the  stage. 

Q.  In  his  proper  position? 

A.  Yes,  sir. 

Q.  At  what  time  during  the  play? 

A.  I  could  not  say,  for  certain,  what  times. 
It  was  between  and  during  the  acts. 

Q.  Did  you  see  him  about  the  time  the  shot 
was  fired  ? 

A.  I  saw  him  about  two  minutes  before  that, 
I  think. 

Q.  Where  was  he  then? 

A.  He  was  on  the  same  side  I  was  on — the 
same  side  as  the  Presidents  box. 

Maddoi  says: 

Q.  Where    was  Spangler's   position   on    the 


A.  His  position  was  on  the  left-hand  side  of 
the  stage. 

Q.  The  same  side  that  the  President's  box 
was  on? 

A.  Yes,  sir ;  he  has  always  been  on  that  side 
since  I  have  been  about  the  theater. 

Q.  Did  you  see  Spangler  that  night? 

A.  Yes,  sir,  I  did. 

Q.  State  at  what  times  you  saw  him,  and 
where  he  was  during  the  performance. 

A.  I  saw  him  pretty  nearly  every  scene.  If 
he  had  not  been  there  I  should  certainly  have 
missed  him.  I  do  not  recollect  of  seeing  him 
away  from  the  flats  at  all.  He  may  have  been 
away,  but  I  can  not  say. 

Q.  Where  were  you  at  the  moment  the  Pres 
ident  was  assassinated? 

A.  I  was  in  the  first  entrance,  left  hand. 

Q.  That  is  the  side  the  President's  box  is  on  ? 

A.  Yes,  sir. 

Q.  Did  you  see  Spangler  very  shortly  before 
that? 

A.  Yes,  sir,  I  think  I  did.  I  saw  him  stand 
ing  at  his  wing  when  I  crossed  the  stage  with 
the  will,  while  the  second  scene  of  the  third  act 
was  on. 

Q.  You  saw  him  in  his  place,  then  ? 

A.  Yes,  sir. 

Q.  How  long  was  that  before  the  President 
was  assassinated? 


A.  I  think  that  was  about  three  or  four 
minutes  ;  it  could  not  have  been  longer  than 
that  before,  but  I  will  not  say  positively. 

Ptitterspack  says  : 

Q.  Where  were  you  standing  when  you  heard 
the  pistol  fired? 

A.  In  the  center  of  the  stage. 

Q.  Where  was  Spangler  then  ? 

A.  He  was  at  the  same  place,  just  about 
ready  to  shove  off  the  scenes,  and  I  was  stand 
ing  there  and  listening  to  the  play. 

Q.  Which  was  nearest  the  door,  you  or 
Spangler? 

A.  I  was. 

Henry  M.  James  says: 

Q.  State  y^ur  position  and  the  position  of 
Edward  Spangler,  if  you  know  what  it  was,  at 
that  time. 

A.  I  was  standing  ready  to  draw  off  the  flat, 
and  Mr.  Spangler  was  standing  opposite  to 
me  on  the  stage  at  the  time  it  happened. 

Q.  You  heard  the  shot  fired? 

A.  Yes,  sir. 

Q.  From  the  position  you  were  in,  you  could 
not  then  see  the  President's  box? 

A.  I  could  not.  There  was  a  flat  between  me 
and  the  President. 

Q.  From  the  position  Spangler  was  in,  could 
he  see  it? 

A.  No  sir. 

Q.  Could  he  see  the  front  part  of  the  stage 
on  which  Booth  jumped? 

A.  No  sir.  He  was  standing  behind  the 
scene. 

Q.  On  which  side  of  the  center  of  the  stage? 
On  the  side  toward  that  on  which  the  President's 
box  was? 

A.  Mr.  Spangler  was  on  the  side  toward 
the  President's  box. 

Q.  Had  you  seen  him  previously  during  the 
play? 

A.  I  had  often  seen  him  every  time  there 
was  anything  to  do  there;  I  did  not  notice  him 
any  other  time,  only  when  the  scenes  had  to  be 
changed  I  saw  him  there  at  his  post. 

On  cross-examination,  Gifford  says  : 

Q.  State  at  what  times  during  the  perform 
ance  you  were  on  the  stage  that  night? 

A.  I  was  on  the  stage  until  the  curtain  went 
up  at  each  act.  When  the  curtain  was  down  I 
would  go  around  on  to  the  stage,  to  see  that 
everything  was  right,  and  then  go  out  again. 

Q.  State  at  what  times  during  that  evening, 
when  you  came  on  the  stage  between  the  acts, 
you  saw  Mr.  Spangler. 

A.  I  could  not  state  the  time.  I  should 
judge  the  last  time  I  saw  him  was  at  about 
half-past  nine  o'clock. 

Q.  State  whether  you  saw  him  each  time  you 
came  on  the  stage.  A.  Yes,  sir;  I  saw  him 
each  time. 

Q.  He    was    your    subordinate,    I  believe? 

A.  Yes,  sir.  Thus  we  have  Miles  and  De- 
bonay,  who  saw  him  at  his  place  when  Booth 
called  for  him;  Debonay,  who  saw  him  in  his 
properplace  three  or  four  limes  after  that,  before 
the  assassination,  "between  arid  during  the 
scenes;  "  Maddox,  who  saw  him  "pretty  nearly 
every  scene;"  Ritterspack  and  James,  who  saw 
him  "  where  he  ought  to  be  to  do  the  work  he  had 


ARGUMENT   OF    THOMAS   EWING,   JR. 


285 


to  do,  behind  the  scenes  ready  to  shove  his  flat,  at 
the  moment  the  shot  was  fired;"  James,  who 
during  the  play,  "had  often  seen  him,  every 
time  there  was  anything  to  do  there;  '  and 
Gifford,  who  was  on  the  stage  between  each 
act,  and  each  time  saw  him  subordinate  there, 
once,  twenty  minutes  before  the  assassination. 

If  any  member  of  this  Court  should  be  called 
on  two  months  hence  to  prove  his  presence  here 
during  any  hour  of  this  day's  session,  he  could 
hardly  bring  as  much  positive  evidence,  or 
more  or  better  negative  evidence  of  the  fact, 
than  has  been  presented  here  to  show  that 
Spangler  was  on  the  stage  throughout  the  hour 
preceding  the  assassination.  Either  the  pos 
itive  or  the  negative  evidence  on  this  point 
taken  alone  shows  beyond  a  possibility  of  doubt 
that  it  was  not  Spangler  whom  Sergeant  Dye 
saw  in  front  of  the  theater  from  half-past  nine 
till  ten  minutes  past  ten  that  night. 

I  do  not  mean  at  all  to  discredit  Sergeant 
Dye's  testimony  as  to  seeing  a  man  in  front  of 
the  theater  that  night  in  consultation  with 
Booth,  or  as  to  that  man  resembling  Spangler. 
Greenawalt  says  a  man,  who  called  himself 
Thomas,  came  to  the  Pennsylvania  House  at 
two  o'clock  that  night  and  staged  until  morning, 
who  resembled  Spangler  "somewhat;  "  but  that 
he  had  darker  hair,  cut  down  half  over  his  ears, 
was  of  heavy  body,  woi-e  a  black  heavy  mus 
tache,  and  "his  beard  came  front,  and  was  cut 
down  from  the  mustache  up  ;  but  it  was  either 
that  way  or  whiskers  all  round.  I  know  he 
had  whiskers  in  front.  "He  describes  him  too, 
as  wearing  a  black,  worn  slouch  hat,  such  as 
Sergeant  Dye  describes  the  man  in  consulta 
tion  with  Booth  to  have  had,  being  the  only 
article  of  clothing  either  Greenawalt  or  Dye  de 
scribes.  It  is  highly  probable  both  saw  the 
same  man.  That  Spangler  is  not  the  man 
Greenawalt  saw  is  certain  from  his  description 
of  his  person,  and  also  from  the  fact  that 
Spangler  slept  in  the  carpenter  shop  adjoining 
the  theater  that  night.  (Garland.) 

I  have  thus  presented  to  the  Court  all  the 
evidence  taken  before  it  on  both  sides,  which 
in  any  way  illustrates  the  acts  done  and  words 
spoken  up  to  the  moment  of  the  assassination, 
having  any  relation  to  the  accused.  I  will  now 
proceed  to  discuss  the  evidence  as  to  his  conduct 
from  that  moment  to  his  arrest,  on  the  17th 
of  April. 

Colonel  Stewart  says  that  he  pursued  Booth 
through  the  passage  which  passes  between  the 
green  and  dressing  rooms  and  the  stage,  and  got 
within  twenty  feet  of  the  back  door  at  the  end  of 
the  passage,  when  Booth  dashed  out,  and 
the  door  slammed  shut\  that  he  reached  the  door 
next  after  Booth,  and  opened  it  and  rushed  out; 
that  in  the  passage  he  passed  several  actors 
and  actresses,  who  were  greatly  agitated;  that 
instantly  after  the  door  slammed  shut  he  saw 
a  man  within  three  feet  of  the  door,  who 
seemed  composed,  and  was  turning  from  the 
door  toward  him;  "  that  that  man  resembled 
Spangler  more  than  he  did  any  of  the  other 
prisoners;  Spangler  makes  the  impression  of 
that  man's  visage  as  I  caught  it  as  I  was  going 
along  very  rapidly." 

Q.  And  you  swear  now  simply  to  a  mere  im 


pression,  hardly  a  fixed  opinion,  as  to  his  being 
the  person? 

A.  I  do  not  undertake  to  swear  positively 
that  that  person  sitting  there  was  the  person 
I  saw.  I  do  say  th^H  I  saw  a  person  there, 
and  I  see  no  person  among  these  prisoners  who 
calls  to  mind  the  appearance  of  that  person  ex 
cept  the  one  I  have  indicated,  and  that  one,  I  am 
told,  is  Mr.  Spangler. 

Q.  I  wish  to  know  how  strongly  you  are  of 
opinion,  or  under  the  impression,  that  that  was 
probably  the  man,  or  whether  you  are  under 
that  impression? 

A.  I  am  decided  in  my  opinion  that  the 
person  now  referred  to  resembles  the  person  I 
saw  there. 

Colonel  Stewart  further  says  that  he  thinks 
the  person  had  some  beard,  but  not  heavy  enough 
to  attract  marked  attention,  and  was  in  a 
position  where  he  might  have  shut  the  door. 
But  the  Court  will  recollect  that  the  person  de 
scribed  was  turning  in  just  the  opposite  way 
from  that  in  which  a  man'  s  body  would  nat 
urally  be  turned  by  the  act  of  slamming  the 
door. 

This  testimony  is  of  not  much  value  on  this 
point : 

1.  Because  Captain  Stewart  does  not  recog 
nize  the  prisoner  as  the  man,  and  because  he 
describes  the  person  he  saw  as  having  beard, 
which  the  prisoner  had  not. 

2.  Because  he  could  not,  in  the   nature  of 
things,  recognize  the  stranger  he  so  hurriedly 
saw,  were  he  to  see  him  again. 

3.  Because  Ritterspack  says  he  saw  Booth 
open  the  door   and  shut  it,    and  that    he   was 
then  the  first  who  opened  the  door  after  Booth, 
and  he  left  it  open,  and  that  a  very   large  man 
(Capt.  Stewart)  followed  him.     The  evidence  of 
Ritterspack,  on  this  point,  is  strengthened  by 
that   of  Ferguson  and  Smith,  who  testify  that 
Booth  ran  off  the  stage  before  Stewart  got  on  it, 
and  that  Stewart  turned  and  looked  up  at  the 
President's   box  before  pursuing  Booth. 

4.  Because  Ritterspack  says  Spangler  was 
on  the  other  side  of  the  stage,  near  the  center, 
behind   the  scenes,  when  the  shot  was  fired, 
and  did  not  go  to  the  door.     James'   testimony 
strengthens  Ritterspack's  on  this  point.     Both 
were  in  view  of  Spangler  when  the  shot  was 
fired,  and  between  him  and  the  door,  and  he 
could  not  have  gone  to  it  without  their  seeing 
him  go.     Neither  saw  him  move. 

2.  Ritterspack  says  when  the  shot  was  fired 
Spangler  was  standing  behind  the  scene  wait 
ing  the  time  to  shove  in,  and  he  was  between 
him  and  the  door,  listening  to  the  play.  That 
he  could  not  tell  what  had  happened,  for  neither 
he  nor  Spangler  could  see  the  President's  box, 
nor  the  front  of  the  stage,  where  they  stood. 
That  some  cried  "  Stop  that  man  1 "  That  after  he 
rushed  out  and  returned,  Spangler  was  stand 
ing  in  the  same  place,  and  "looked  the  same  as 
if  he  was  crying,  a  kind  of  scared."  He  then 
hit  me  on  the  face  with  the  back  of  his  hand, 
and  he  said,  "  Don't  say  which  way  he  went.  "  I 
asked  him  what  he  meant  by  slapping  me  in 
the  mouth,  and  he  said,  "For  God'  s  sake, 
thus  up,  and  that  was  the  last  he  said." 

Gifford,  to    whom  Ritterspack   says  he  told 


286 


THE    CONSPIRACY   TRIAL. 


this  at  Carroll  Prison,  says  he  only  told  him  he 
had  forgotten  to  tell  something  in  his  first  ex 
amination,  and  that  he  (Gifford)  certainly  would 
have  recollected  this  had  it  been  told  him. 
Garland,  to  whom  Ritterspack  said  he  told  it  on 
the  night  of  the  assassination,  says  he  told 
him  that  he  said  to  Spangler,  as  Booth  ran  along 
the  passage,  "That's  Mr.  Booth,  "  and  Spangler 
slapped  him  and  said,  "You  don't  know  who  it 
is — it  may  be  Mr.  Booth,  or  it  may  be  some 
one  else."  Lamb,  to  whom,  Ritterspack  said  he 
told  it  next  day,  says  he  told  him  substantially 
the  same  he  told  Garland  the  night  before,  and 
says  that  Ritterspack  was  grumbling  at  Spang 
ler  for  slapping  him.  All  three  of  these  wit 
nesses  assert  most  positively  that  Ritterspack 
did  not  represent  Spangler  as  saying,  "  Don't 
say  which  way  he  went." 

At  the  time  Ritterspack  told  these  gentlemen 
of  the  conversation  with  Spangler,  the  theater 
had  been  taken  possession  of  by  the  military 
authorities,  and  general  suspicion  directed  to 
the  employees,  under  the  belief  that  Booth  had 
accomplices  among  them.  Each  employee  was 
doubtless  scanning  the  reported  conduct  of  his 
fellows,  and  especially  that  of  Burroughs  and 
Spangler,  Booth's  horse  holders.  Ritterspack's 
statement  was  one  they  would  be  likely  to 
weigh  and  recollect.  If  Garland  and  Lamb 
recollect  aright  what  Ritterspack  told  them, 
there  can  be  no  question  but  that  his  statement 
of  the  conversation,  made  on  the  witness  stand, 
is  incorrect.  For  if  the  conversation  did  occur 
between  him  and  the  accused,  he  would  recol 
lect  and  tell  it  more  exactly  that  night  and 
next  day  than  he  would  after  undergoing  a 
month's  confinement,  and  alarm,  and  detective 
discipline,  in  Carroll  Prison. 

The  evidence  of  Dabonay,  in  his  second  ex 
amination,  tends  strongly  to  show  that  Spang 
ler  had  shoved  his  scene  back  and  got  on  the 
front  of  the  stage  befoi'e  Ritterspack  could  have 
returned  and  held  the  reported  conversation. 
He  says: 

Q.  State  to  the  Court  again  where  you  were 
standing  when  the  shot  was  fired  in  the  thea 
ter  on  the  night  of  the  14th  of  April. 

A.  I  was  standing  on  the  left-hand  side,  first 
entrance. 

Q.  You  mean  the  side  the  President's  box, 
was  on? 

A.  Yes,  sir. 

Q.  How  long  was  it  after  you  saw  Mr.  Stew 
art  run  out  after  Booth,  before  you  saw  the 
accused,  Edward  Spangler ;  and  where  did  you 
see  him,  and  what  did  you  see  him  do? 

A.  The  first  time  I  saw  him  he  was  moving 
his  scene,  I  think.  They  shoved  the  scene  back 
to  give  the  whole  of  the  stage  to  the  people  who 
came  on.  I  do  not  know  who  assisted  him. 

Q.  How  long  was  that  after  Mr.  Stewart  had 
left  the  stage? 

A.  I  guess  it  was  about  a  minute  and  a-half, 
or  two  minutes. 

Q.  Was  it  long  enough  for  Mr.  Stewart  to 
have  got  out  of  the  back  door  ? 

A.  I  think  he  had  just  about  time  to  get  to  the 
back  door  before  they  shoved  the  scenes. 

Q.  What  did  Spangler  do   then  ? 

A.  He  came  in  front  on  the  stage,  with  the 


rest.  There  was  a  cry  for  water,  and  I  started 
to  the  green-room,  and  he  started  the  same 
way.  About  half  a  dozen  of  us  went  to  get 
some  water  to  carry  it  to  the  private  box. 

Q.  How  far  did  Spangler  go  after  the  water? 
Did  he  go  into  the  green-room  ? 

A.  We  all  went  into  the  green-room  ;  about 
half  a  dozen  of  us  went  into  the  green-room. 
By  that  time  the  stage  Avas  full  of  people. 

Maddox  says  he  saw  Booth  just  as  he  left 
the  stage,  and  that  he  then  "  run  on  the  stage 
and  heard  the  call  for  water." 

This  evidence  of  Debonay  and  Maddox,  and 
the  statements  of  Garland  and  Lamb,  and  the 
strong  improbability  of  Spangler's  standing, 
still  amid  the  great  commotion,  render  it  nearly 
certain  that  Spangler  was  not  in  his  place  be 
hind  the  scene  when  Ritterspack  returned; 
and  that,  if  anything  was  said  between  them, 
it  was  as  stated  by  Ritterspack  to  Garland  and 
Lamb.  If  that  be  so,  of  what  significance  were 
Spangler's  acts  or  words?  He  was  riot  in  posi 
tion  to  see  Booth  when  he  jumped  on  the  stage,  and 
and  ran  off,  for  the  scene  was  between  them.  He 
heard  nothing  but  the  shot,  followed  by  the 
cry,  "Stop  that  man  "  as  the  assassin,  bending 
forward,  hatless,ffied  through  the  bewildered 
crowd  in  the  narrow  passage  opposite.  How 
would  he  know  it  was  Booth  instantly,  when 
Booth's  name  had  not  then  been  called  (Ritter 
spack)  and  when  men  who  knew  Booth  well, 
and  saw  him  leap  on  the  stage  and  face  the 
audience  in  the  glare  of  the  foot-lights,  shout 
ing  "  Sic  Semper  Tyrannis!"  before  he  fled,  did 
not  recognize  him  ?  (Gobright)  And  if  he  did 
recognize  Booth,  hoAV  could  he  know  what  had 
been  done?  And  what  could  be  more  natural 
or  apparently  innocent  than  his  telling  Ritter 
spack,  who  cried,  "That's  Mr.  Booth  !  "Shut 
up,  you  don't  know  who  it  is.  It  may  be  Mr. 
Booth  and  may  be  some  one  else  !" 

But  even  if  Ritterspack's  last  statement  be 
true  (which  I  think  it  clearly  is  not),  and 
Spangler  was  still  standing  behind  the  scene, 
and  said,  "  Shut  up,  don't  say  which  way  he 
went!"  "For  God's  sake,  shut  up,"  he  only 
knew  that  Booth  had  fled,  and  was  being  pur 
sued.  He  had  seen  nothing,  and  was  stunned 
by  the  clamor  and  excitement.  He,  probably, 
did  not  think  that  Booth  had  committed  crime, 
or  know  what  crime  had  been  committed,  or 
how  Booth  was  connected  in  it.  It  was  a  stu 
pid,  ineffective  exclamation — for  Ritterspack 
was  not  then  pursuing  Booth,  but  dozens  of 
others  were. 

But  whatever  view  we  take  of  Ritterspack's 
evidence,  Captain  Stewart's  faint  recognition  of 
Spangler  as  the  man  he  met  at  the  door,  falls 
to  the  ground,  for  Withers,  who  knows  Spang 
ler  well,  and  saw  Booth  open  and  shut  the 
door,  did  not  see  Spangler  there,  and  from 
Spangler's  position  when  the  shot  was  fired, 
as  sworn  to  by  both  Ritterspack  and  James, 
who  were  both  between  him  and  the  door,  and 
who  did  not  notice  him  move,  it  is  certain  he 
was  not  at  the  door  when  Stewart  ran  down 
the  passage. 

3.  After  the  assassination,  John  Miles  (col 
ored)  came  down  from  tne  flies,  three  stories 
above  the  stage,  and  met  Spangler  and  several 


ARGUMENT    OF   THOMAS    EWING,   JR. 


287 


others  at  the  back  door,  "  and  I  asked  him 
who  it  was  that  held  the  horse,  and  he  told  me 
to  '  hush,  not  to  say  nothing,'  and  I  did  not  say 
anything  more,  though  I  knew  who  it  was,  be 
cause  I  saw  the  boy  (Peanuts)  holding  the 
horse.  He  said  'hush  don't  say  anything  to 
me,'  or  'hush  don't  say  anything  about  it.'  " 

Mary  Jane  Anderson  (colored)  says  that  a 
short  time  after  Booth  had  gone,  she  went  to  the 
door  of  the  theater,  where  some  people  were 
standing,  and  said  to  Mr.  Spangler,  "That  gen 
tleman  (Booth)  called  you,  and  he  said  'no  he 
did  not —  he  did  not  call  me, '  and  I  said  '  he 
did  call  you, '  and  I  kept  on  saying  so.  With 
that  he  walked  down  the  alley."  It  was  prob 
ably  not  fear  of  the  authorities,  but  of  the 
infuriated  people,  which  led  Spangler  to  this 
effort  to  conceal  the  fact  that  Booth  called  him, 
and  that  he  took  the  horse.  It  is  as  consistent 
with  the  theory  of  his  innocence  as  of  his  guilt, 
and  therefore  amounts  to  nothing. 

4.  Garland  says  Spangler  usually  slept  in 
the  theater — that  on  Friday  night  he  slept  in 
the  carpenter  shop,  which  is  part  of  the  thea 
ter  building.  Lamb  says  he  was  in  the  theater 
all  day  Saturday,  and  saw  Spangler  there 
through  the  day.  Garland  says  Spangler  slept 
in  his  room  Saturday  night,  adjoining  the  thea 
ter,  saying  there  was  talk  of  burning  the  thea 
ter,  and  ho  was  "  afraid  to  stay  in  it  alone,  as 
he  was  a  heavy  sleeper;"  and  that  he  was  ar 
rested  there  that  night  arid  discharged  Sunday 
morning.  Sunday  afternoon  he  saw  him  again, 
near  the  theater,  and  went  with  him  visiting 
some  friends ;  and  there,  hearing  that  he  was 
to  be  arrested  again,  he  (Spangler)  went  to  the 
Detective  Police  office,  and  learned  it  was  not  so. 
During  this  time  he  had  no  money.  He  Was 
arrested  Monday,  and  up  to  that  time  was  at 
his  meals,  as  usual,  at  a  boarding  house  where 
he  had  taken  them  for  five  or  six  months 
(Boigi,  Goenther),  and  where  his  carpet-sack 
remained,  with  the  rope  in  it.  During  these 
three  days  and  nights  there  is  not  a  word  or 
act  of  Spangler's  shown  in  evidence  which 
does  not  indicate  a  consciousness  of  innocence. 

There  are  several  circumstances  and  general 
considerations  I  will  now  present  to  the  Court 
remotely  affecting  the  case  of  the  accused,  arid 
with  it  the  question  of  the  probable  complicity 
of  any  of  the  men  connected  with  the  theater 
in  the  horrid  crime  of  the  conspiracy. 

It  will  be  recollected  that  Chester,  the  New 
York  actor,  says  that  in  the  latter  part  of  De 
cember,  or  early  in  January,  Booth  solicited 
him  to  engage  in  a  scheme  to  capture  the  Presi- 
ident,  and  said  he  proposed  to  do  it  at  Ford's 
Theater,  which  the  President  frequently  visited, 
and  that  he  wanted  him  to  open  the  back  door 
at  a  preconcerted  signal,  "and  that  it  must  be 
eome  one  connected  or  acquainted  with  that 
theater  who  could  take  part  in  it."  I  offered  to 
show  that  by  the  "  some  one  connected  or  famil 
iar  with  Ford's  Theater,"  was  meant  Chester 
himself,  by  showing  Booth's  repeated  solicita 
tions  to  Ford,  in  January  and  February,  to 
employ  that  actor,  but  the  Judge  Advocate  ob 
jected,  and  the  objection  was  sustained.  That 
inference,  however,  is  clearly  deducible  from 
Chester's  own  statement. 


I  also  proposed  to  show  that  from  its  con 
struction  an  escape  could  be  more  readily  made 
from  the  private 'boxes  of  Ford's  Theater,  than 
from  those  of  the  other  principal  theaters  here; 
but  the  Judge  Advocate  again  objected,  and  his 
objection  was  sustained. 

It  is  fit  I  should  advert  to  these  rulings  of  the 
Court,  to  show  it  that  if  Chester's  evidence  is 
without  explanation,  it  is  so  by  reason  of  its 
own  rulings.  I  do  not  feel,  however,  that,  as  it 
stands,  that  evidence  is  of  weight  against  the 
accused.  It  is  rather  in  his  favor,  for  the  only 
thing  Chester  said  Booth  wanted  him  to  do  is  a 
thing  which  Spangler  could  easily  have  done, 
without  of  itself  attracting  suspicion,  and 
which  would  have  greatly  aided  Booth's  es 
cape,  but  which  Booth  did  for  himself — open 
ing  the  back  door  after  the  shot  was  fired. 

It  has  been  generally  thought  that  Booth 
could  not  have  accomplished  the  crime  and 
then  escape  without  one  or  more  accomplices 
employed  about  the  theater.  I  feel  safe  in  say 
ing  not  only  that  it  does  not  appear  he  had  one, 
but  also  that  it  does  appear  he  did  not  need  one. 

1.  Booth  was   an  actor  of    some  distinction, 
who  had  played   at   Ford's,  and  had,   through 
professional  courtesy,  as  well  as  his   engaging 
manners,  free  access  to  the  theater  at  all  hours 
and  by  every  entrance,  when  it  was  open.     He 
had,  therefore,  abundant  opportunities  to  make 
his  preparations  about  the  President's  box,  un 
observed  and  unaided. 

2.  The  leap  from  the  box  needed  no  rehearsal. 
It  is  one  which  any  man  of  good  strength  and 
action   could  make   with   safety.     Had   it   not 
been — apparently  through  a  providence  of  God 
— that  the  villain's  spur  caught  in  the  folds  of 
one  of  our  country's  battle  flags,  which  adorned 
the  box,  he  would  have  made  the  leap  with  ease. 
John  T.  Ford  says: 

Q.  State  to  the  Court  whether,  from  your 
knowledge  of  Booth,  the  leap  from  the  box  upon 
the  stage  would  be  a  difficult  one. 

A.  By  no  means,  I  think.  He  excelled  in 
everything  of  that  kind.  He  had  a  reputa 
tion  for  being  a  great  gymnast.  He  introduced, 
in  some  Shakesperian  plays,  some  of  the  most 
extraordinary  and  outrageous  leaps,  deemed  so 
by  the  critics  and  condemned  by  the  press  at 
the  time. 

3.  The  passage  leading  to  the  alley  door,  by 
which  Booth  escaped,  was  always  kept  clear  of 
furniture   and    other  obstructions    during   the 
play.     Hess,  Gifford,  Maddox,  James,  Ford  and 
others   testify,  most   emphatically,  to  that.     C. 
D.    Hess,  the    manager  of  Grover's  Theater,   a 
rival  of  Ford's,  says: 

Q.  State  whether  or  not  it  is  customary  in 
theaters  to  keep  the  passage-way  between  the 
scenes  and  the  green-room  and  the  dressing 
room  clear. 

A.  Yes,  sir;  that  is  a  point  of  excellence  in 
a  stage  carpenter.  If  he  keeps  a  clean  stage 
and  his  scenes  well  put  away,  the  passage  as 
clear  as  possible,  we  look  upon  him  as  a  care 
ful  man. 

And  John  T.  Ford  says: 

Q.  Then  I  understand  the  prisoner,  Spangler, 
would  not  be  charged  with  the  duty  of  keeping 
the  passage-way  in  order? 


288 


THE    CONSPIRACY   TRIAL. 


A.  That  was  no  duty  of  his,  unless  specially 
assigned  to  him  by  the  stage  carpenter;  he  was 
subordinate  entirely  to  tho  stage  carpenter. 

Q.  Now  state  whether  or  not  that  passage 
way  is  generally  obstructed  in  any  way. 

A.  It  should  never  be  obstructed.  My  posi 
tive  orders  are  to  keep  it  always  clear  and  in 
the  best  order.  It  is  the  passage-way  used  by 
all  the  parties  coming  from  the  dressing  rooms. 
Where  a  play  was  performed  like  the  American 
Cousin,  the  ladies  were  in  full  dress,  and  it  was 
absolutely  necessary  that  there  should  be  no 
obstruction  there,  in  order  that  the  play  should 
be  properly  performed.  Coming  from  the  dress 
ing  rooms  and  the  green-room  of  the  theater, 
every  one  had  to  use  that  passage. 

I  have  no  doubt  that  Booth,  knowing  the 
passage  would  be  clear,  was  confident  that, 
with  his  bowie-knife  drawn,  he  would  meet 
with  no  resistance  from  the  unarmed  men  and 
women  who  might  flock  from  the  green-room  in 
wonder  and  amazement  at  the  shot  and  shouts. 
If  so,  he  would  not  have  wanted  or  provided 
any  help,  except  some  one  to  hold  his  horse, 
which  "Peanuts"  did,  and  some  one  to  open  the 
door  for  him  and  shut  it  on  his  pursuers,  which 
nobody  did  but  himself. 

4.  C.  D.  Hess,  the  manager  of  Grover's  Thea 
ter,  says: 

Q.  State  whether  you  were  in  the  habit  of 
seeing  John  Wilkes  Booth  during  the  last  sea 
son  before  the  assassination  of  the  President. 

A.  Yes,  sir,  very  frequently. 

Q.  State  whether  he  ever  made  any  inquiry 
of  you  in  regard  to  the  President's  attending 
your  theater. 

A.  He  did  make  such  an  inquiry. 

Q.  When? 

A.  On  the  day  before  the  assassination. 

Q.  State  the  circumstances  under  which  the 
inquiry  was  made. 

A.  He  came  into  the  office  some  time  during 
the  afternoon,  I  think,  of  Thursday,  interrupted 
me  and  the  prompter  of  the  theater  in  reading 
a  manuscript,  seated  himself  in  a  chair,  and 
entered  into  conversation  on  the  subject  of  the 
illumination.  There  was  to  be  a  general  illu 
mination  of  the  city  on  Thursday  night,  and  he 
asked  me  if  I  intended  to  illuminate.  I  told 


him  yes,  I  would  illuminate  to  a  certain  extent 
that  night,  but  that  the  next  night  would  be  my 
great  night  of  the  illumination,  that  being  the 
celebration  of  the  fall  of  Sumter.  He  asked 
me  the  question — my  impression  is,  his  words 
were,  "Do  you  intend,"  or  "Are  you  going  to 
invite  the  President?"  I  think  my  reply  was, 
"Yes,  that  reminds  me  I  must  send  that  invita 
tion."  I  had  it  in  my  mind  for  several  days  to 
invite  the  Presidential  party  d'own  on  that 
night — on  the  night  of  the  14th. 

Q.  Was  there  anything  marked  in  Booth's 
manner  in  making  the  inquiry  of  you? 

A.  It  struck  me  as  rather  peculiar,  his  enter 
ing  in  the  manner  that  he  did;  he  must  have 
observed  that  we  were  busy,  and  it  was  not 
usual  for  him  to  come  in  and  take  a  seat  unless 
he  was  invited.  He  did  upon  that  occasion,  and 
made  such  a  point  of  it  that  we  were  both  con 
siderably  surprised.  He  pushed  the  matter  so 
far  that  I  got  up  and  put  the  manuscript  away 
and  entered  into  conversation  with  him. 

It  is  probable  from  this  that  Booth  would 
have  attempted  the  assassination  of  the  Presi 
dent  in  Grover's  Theater,  had  he  gone  there  in 
stead  of  to  Ford's  on  that  fatal  night;  and  it 
tends  to  show  that  he  had  no  accomplices  at 
either  theater. 

I  have  now  presented  to  the  Court  every  point 
in  the  evidence  which  seems  to  me  may,  by  any 
possibility,  be  relied  on  as  indicating  guilty 
knowledge  of  or  participation  by  Spangler  in 
the  conspiracy,  or  any  of  its  crimes.  From 
the  natural  partiality  of  a  counsel  to  his  client, 
I  may  not  have  noticed  all  that  bears  against 
him,  or  presented  it  in  its  true  light,  but  1  have 
earnestly  sought,  in  this  discussion,  to  show  all 
that  is  of  weight  for  or  against  him,  extenu 
ating  nothing.  I  can  see  in  the  evidence  no 
ground  for  such  suspicion  as  would,  in  the 
civil  courts,  lead  a  grand  jury  to  present  him 
for  trial,  and  believe  that,  so  far  from  his 
guilt  being  established  beyond  a  reasonable 
doubt,  a  review  of  the  evidence  will  leave,  in 
few  candid  minds,  a  reasonable  doubt  of  hie 
innocence. 

EDWARD  SPANGLER. 

By  his  Counsel. 


IN  DEFENSE  OF  MRS.  MARY  E.  SURRATT, 


BY 


FREDERICK    A.    AIKEN,ESQ 

Of  Counsel  for  Mrs.  Surra  tt. 


Mr.  President  and  Gentlemen  of  the  Commission  : 

For  the  lawyer  as  well  as  the  soldier,  there 
is  an  equally  pleasant  duty — an  equally  im 
perative  command.  That  duty  is  to  shelter 
from  injustice  and  wrong  the  innocent,  to  pro 
tect  the  weak  from  oppression,  and  to  rally  at 
all  times  and  on  all  occasions,  when  necessity 
demands  it,  to  the  special  defense  of  those 
whom  nature,  custom,  or  circumstance  may 
have  placed  in  dependence  upon  our  strength, 
honor  and  cherishing  regard.  That  command 
emanates  and  reaches  each  class  from  the  same 
authoritative  and  omnipotent  source.  It  comes 
from  a  Superior,  whose  right  to  command  none 
dare  question,  and  none  dare  to  disobey.  In 
this  command  there  is  nothing  of  that  lex  talionis 
which  nearly  two  thousand  years  ago  nailed 
to  the  cross  its  Divine  Author. 

"  Therefore,  all  things  whatsoever  ye  would 
that  men  should  do  to  you,  do  ye  even  so  unto 
them;  for  this  is  the  law  and  the  prophets." 

God  has  not  only  given  us  life,  but  He  has 
filled  the  world  with  everything  to  make  life 
desirable;  and  when  we  sit  down  to  determine 
the  taking  away  of  that  which  we  did  not  give, 
and  which,  when  once  taken,  we  can  not  re 
store,  we  consider  a  subject  the  most  solemn  and 
momentous  within  the  range  of  human  thought 
and  human  action. 

Profoundly  impressed  with  the  innocence  of 
our  client,  we  enter  upon  this  last  duty  in  her 
case  with  the  heartfelt  prayer  that  her  honor 
able  judges  may  enjoy  the  satisfaction  of  not 
having  a  single  doubt  left  on  their  minds  in 
granting  her  an  acquittal,  either  as  to  the  testi 
mony  affecting  her,  or  by  the  surrounding  cir 
cumstances  of  the  case. 

The  first  point  that  naturally  arises  in  the 
presentation  of  the  defense  of  our  client,  is 
that  which  concerns  the  plea  that  has  been 
made  to  the  jurisdiction  of  this  Commission  to 
try  her — a  plea  which  by  no  means  implies 
any  thing  against  the  intelligence,  fairness,  or 
integrity  of  the  brilliant  and  distinguished 
officers  who  compose  the  Court,  but  which 
merely  touches  the  question  of  the  right  of  this 
tribunal,  under  the  authority  by  which  it  is 
convoked.  This  branch  of  her  case  is  left  to 
depend  upon  the  argument  already  submitted 
by  her  senior  counsel,  the  grande  decus  coin- 
menque  of  his  profession,  and  which  is  exhaust- 

19 


ive  of  the  subject  on  which  it  treats.  There 
fore,  in  proceeding  to  the  discussion  of  the 
merits  of  the  case  against  her,  the  jurisdiction 
of  the  Court,  for  the  sake  of  argument,  may  be 
taken  as  conceded. 

But,  if  it  be  granted  that  the  jurisdiction  is 
complete,  the  next  preliminary  inquiry  natu 
rally  is  as  to  the  principles  of  evidence  by 
which  the  great  mass  of  accumulated  facts  is 
to  be  analyzed  and  weighed  in  the  scales  of 
justice  and  made  to  bias  the  minds  of  her 
judges;  and  it  may  be  here  laid  down  as  a 
concessum  in  the  case  that  we  are  here  in  this 
forum,  constrained  and  concluded  by  the  same 
process,  in  this  regard,  that  would  bind  and 
control  us  in  any  other  Court  of  civil  origin, 
having  jurisdiction  over  a  crime  such  as  is 
here  charged.  For  it  is  asserted  in  all  the 
books  that  courts-martial  must  proceed,  so  far 
as  the  acceptance  and  the  analysis  of  evidence 
is  concerned,  upon  precisely  those  reasonable 
rules  of  evidence  which  time  and  experience, 
ab  antico,  surviving  many  ages  of  judicial  wis 
dom,  have  unalterably  fixed  as  unerring  guides 
in  the  administration  of  the  criminal  law. 
Upon  this  conceded  proposition  it  is  unneces 
sary  to  consume  time  by  the  multiplication  of 
references.  We  are  content  with  two  brief 
citations  from  works  of  acknowledged  author 
ity. 

In  Greenleaf  it  is  laid  down,  "that  courts- 
martial  are  bound,  in  general,  to  observe  the 
rules  of  the  law  of  evidence  by  which  the 
courts  of  criminal  jurisdiction  are  governed." 
3  Greenleaf,  sec.  40 7. 

This  covers  all  the  great  general  principles  of 
evidence,  the  points  of  difference  being  wholly 
as  to  minor  matters. 

And  it  is  also  affirmed  in  Benet,  "  that  it 
has  been  laid  down  as  an  indisputable  princi 
ple,  that  whenever  a  legislative  act  erects  a 
new  jurisdiction,  without  prescribing  any  par 
ticular  rules  of  evidence  to  it,  the  common 
law  will  supply  its  own  rules,  from  which  it 
will  not  allow  such  newly-erected  Court  to 
depart.  The  rules  of  evidence,  then,  that  ob 
tain  in  the  criminal  courts  of  the  country, 
must  be  the  guides  for  the  courts-martial ;  the 
end  sought  for  being  the  truth,  these  rules 
laid  down  for  the  attainment  of  that  end,  must 
be  intrinsically  the  same  in  both  cases.  These 
rules  constitute  the  law  of  evidence,  and  in- 
289 


290 


THE    CONSPIRACY   TRIAL. 


volve  the  quality,  admissibility,  and  effect  of 
evidence  and  its  application  to  the  purposes 
of  truth."  JBenet,  pp.  226,  227. 

Therefore,  all  the  facts  that  tend  against  the 
accused,  and  all  those  that  make  for  her,  are 
to  be  weighed  and  are  to  operate  upon  her  con 
viction  or  acquittal  precisely  as  they  would  in 
a  court  of  law.  If  they  present  a  case  such 
as  would  there  convict  her,  she  may  be  found 
guilty  here ;  and  if,  on  the  other,  hand,  the 
rules  of  law  upon  these  facts  would  raise  any 
presumption  or  create  any  doubt,  or  force  any 
conclusions  that  would  acquit  her  in  a  court 
of  law,  then  she  must  be  discharged,  upon  the 
same  principles,  by  this  Commission.  This  is 
a  point  which,  in  our  judgment,  we  can  not  too 
strongly  impress  upon  the  minds  of  her  judges. 
The  extraordinary  character  of  the  crime ; 
the  assassination  that  removed  from  us  the 
President  of  the  United  States,  makes  it  most 
desirable  that  the  findings  of  this  tribunal 
shall  be  so  well  founded  in  reason  as  to  satisfy 
and  secure  public  confidence  and  approval; 
for  many  of  the  most  material  objects  of  this 
prosecution,  and  sotoe  of  the  most  important 
ends  of  justice,  will  be  defeated  and  frustrated 
if  convictions  or  acquittals,  and  more  espe 
cially  the  former,  shall  be  adjudged  upon 
grounds  that  are  notoriously  insufficient. 

Such  a  course  of  action  would  have  a  ten 
dency  to  draw  sympathy  and  support  to  the 
parties  thus  adjudged  guilty,  and  would  rob 
the  result  of  this  investigation  of  the  whole 
some  support  of  professional  and  public  opin 
ion.  The  jurisdiction  of  the  Commission,  for 
example,  is  a  matter  that  has  already  provoked 
considerable  criticism  and  much  warm  disap 
proval  ;  but  in  the  case  of  persons  clearly  found 
to  be  guilty,  the  public  mind  would  easily  over 
look  any  doubts  that  might  exist  as  to  the 
regularity  of  the  Court  in  the  just  sentence 
that  would  overtake  acknowledged  criminals. 
Thus,  if  Booth  himself  and  a  party  of  men 
clearly  proved,  by  ocular  evidence  or  confes 
sion,  to  have  aided  him,  were  here  tried  and  con 
demned,  and,  as  a  consequence,  executed,  not 
much  stress,  we  think,  would  be  laid  by  many 
upon  the  irregularity  of  the  mode  by  which 
they  should  reach  that  just  death  which  all 
good  citizens  would  affirm  to  be  their  deserts. 
But  the  case  is  far  different  when  it  affects  per 
sons  who  are  only  suspected,  or  against  whom 
the  evidence  is  weak  and  imperfect;  for  if  citi 
zens  may  be  arraigned  and  convicted  for  so 
grievous  an  offense  as  this  upon  insufficient 
evidence,  every  one  will  feel  his  own  personal 
safety  involved,  and  the  tendency  would  be  to 
intensify  public  feeling  against  the  whole  pro 
cess  of  the  trial.  It  would  be  felt  and  argued 
that  they  had  been  condemned  upon  evidence 
that  would  not  have  convicted  them  in  a  civil 
court,  and  that  they  had  been  deprived,  there 
fore,  of  the  advantages  which  they  would  have 
had  for  their  defense.  Reproach  and  con 
tumely  upon  the  Government  would  be  the 
natural  result,  and  the  first  occasion  would 
arise  in  all  our  history  for  such  demonstrations 
as  would  be  sure  to  follow  the  condemnation  of 
mere  citizens,  and  particularly  of  a  woman, 
upon  evidence  oil  which  an  acquittal  would  fol 


low  in  a  civil  court.  It  is,  therefore,  not  only 
a  matter  of  the  highest  concern  to  the  accused 
themselves  as  a  question  of  personal  and  pri 
vate  right,  but  also  of  great  importance  upon 
considerations  of  general  public  utility  and 
policy,  that  the  results  of  this  trial,  as  affecting 
each  of  the  accused,  among  them  Mrs.  Surratt, 
shall  be  rigidly  held  within  the  bounds  and 
limitations  that  would  control  in  the  premises, 
if  the  parties  were  on  trial  in  a  civil  court 
upon  an  indictment  equivalent  to  the  charges 
and  specifications  here.  Conceding,  as  \ve  have 
said,  the  jurisdiction  for  the  purposes  of  this 
branch  of  the  argument,  we  hold  to  the  princi 
ple  first  enunciated  as  the  one  great,  all-import 
ant,  and  controlling  rule  that  is  to  guide  the 
Commission  in  the  findings  they  are  now  about 
to  make.  In  order  to  apply  this  principle  to 
the  case  of  our  client,  we  do  not  propose  to 
range  through  the  general  rules  of  evidence 
with  a  view  to  seeing  how  they  square  with  the 
facts  as  proven  against  her.  In  the  examina 
tion  of  the  evidence  in  detail,  many  of  these 
must  from  necessity  be  briefly  alluded  to  ;  but 
there  is  only  one  of  them  to  which  we  propose 
in  this  place  to  advert  specifically,  and  that  is 
the  principle  that  may  be  justly  said  to  lie  at 
the  foundation  of  all  the  criminal  law — a  prin 
ciple  so  just,  that  it  seems  to  have  sprung  from 
the  brain  of  Wisdom  herself,  and  so  undoubted 
and  universal  as  to  stand  upon  the  recognition 
of  all  the  times  and  all  the  mighty  intellects 
through  and  by  which  the  common  law  has 
been  built  up.  We  allude,  of  course,  to  that 
principle  which  declares  that  "  every  man  is 
held  to  be  innocent  until  he  shall  be  proven 
guilty  " — a  principle  so  natural  that  it  has 
fastened  itself  upon  the  common  reason  of 
mankind,  and  been  immemorially  adopted  as  a 
cardinal  doctrine  in  all  courts  of  justice 
worthy  of  the  name.  It  is  by  reason  of  this 
gi'eat,  underlying  legal  tenet  that  we  are  in 
possession  of  the  rule  of  law,  administered  by 
all  of  the  courts,  which,  in  mere  technical  ex 
pression,  may  be  termed  k'the  presumption  of 
innocence  in  favor  of  the  accused."  And  it  is 
from  hence  that  we  derive  that  further  applica 
tion  of  the  general  principle,  which  has  also 
become  a  rule  of  law  and  of  universal  applica 
tion  wherever  the  common  law  is  respected 
(and  with  which  we  have  more  particularly  to 
deal),  by  which  it  is  affirmed,  in  common  lan 
guage,  that  in  any  prosecution  for  crime  "THE 

ACCUSED  MUST  BE  ACQUITTED  WHERE  THERE  13  A 
REASONABLE  DOUBT  OF  HIS  GUILT."  We  hardly 

think  it  necessary  to  adduce  authorities  for  this 
position  before  any  tribunal.  In  a  civil 
court  we  certainly  should  waive  the  citations, 
for  the  principle  as  stated  would  be  assumed 
by  any  civil  judge,  and  would,  indeed,  be  tho 
starting  point  for  any  investigation  whatever. 
Though  a  maxim  so  common  and  conceded,  it  is 
fortified  by  the  authority  of  all  the  great  lights 
of  the  law.  Before  reference,  however,  is  made 
to  them,  we  wish  to  impress  upon  the  minds  of 
the  Court  another  and  important  rule  which  we 
shall  have  occasion  to  refer  to: 

"The  evidence  in  support  of  a  conspiracy  is 
generally  circumstantial."  Russell  on  Crimes,  vol. 
2,  g  698. 


ARGUMENT    OF   FREDERICK    A.    AIKEN. 


291 


In  regard  to  circumstantial  evidence,  all  the 
best  and  ablest  writers,  ancient  and  modern, 
agree  in  treating  it  as  wholly  inferior  in 
cogency,  force,  and  effect,  to  direct  evidence. 
And  now  for  the  rule  which  must  guide  the 
jury  in  all  cases  of  reasonable  doubt: 

"  If  evidence  leave  reasonable  ground  for 
doubt,  the  conclusion  can  not  be  morally  cer 
tain,  however  great  may  be  the  preponderance 
of  probability  in  its  favor."  Wills  on  Circum 
stantial  Evidence.  Law  Library,  vol.  41. 

"  The  burden  of  proof  in  every  criminal 
case  is  on  the  Government  to  prove  all  the  ma 
terial  allegations  in  the  indictment;  and  if,  on 
the  whole  evidence,  the  jury  have  a  reasonable 
doubt  whether  the  defendant  is  guilty  of  the 
crime  charged,  they  are  bound  to  acquit  him. 
If  the  evidence  leads  to  a  reasonable  doubt, 
that  doubt  will  avail  in  favor  of  the  prisoner." 
1st  Greenleaf,  sec  34 — Note. 

Perhaps  one  of  the  best  and  clearest  defini 
tions  of  the  meaning  of  a  "reasonable  doubt" 
is  found  in  an  opinion  given  in  Dr.  Webster's 
case  by  the  learned  and  accurate  Chief-Justice 
of  Massachusetts.  He  said: 

"  The  evidence  must  establish  the  truth  of 
the  fact  to  a  reasonable  and  moral  certainty ;  a 
certainty  that  convinces  and  directs  the  under 
standing,  and  satisfies  the  reason  and  judgment 
of  those  who  are  bound  to  act  conscientiously 
upon  it."  Commonwealth  vs.  Webster,  5  Gush., 
320. 

Far  back  in  the  early  history  of  English 
jurisprudence  we  find  that  it  was  considered 
a  most  serious  abuse  of  the  common  law  "that 
justices  and  their  officers,  who  kill  people  by 
false  judgment,  be  not  destroyed  as  other  mur 
derers,  which  King  Alfred  caused  to  be  done, 
who  caused  forty- four  justices  in  one  year  to 
be  hanged  for  their  false  judgment.  He  hanged 
Freburne  because  he  judged  Harpin  to  die, 
whereas  the  jury  were  in  doubt  of  their  verdict; 
for  in  doubtful  cases  we  ought  rather  to  save 
than  to  condemn." 

The  spirit  of  the  Roman  law  partook  of  the 
same  care  and  caution  in  the  condemnation  of 
those  charged  with  crime.  The  maxim  was  : 

"  Satius  est,  impunitum  relinqui  fecinus  nocentis, 
quam  innocentem  damnare?' 

That  there  may  be  no  mistake  concerning  the 
fact  that  this  Commission  is  bound  as  a  jury 
by  these  rules,  the  same  as  juries  in  civil 
courts,  we  again  quote  from  Benet: 

"It  is  in  the  province  of  the  Court  (Court- 
martial)  to  decide  all  questions  on  the  admissi- 
bility  of  evidence.  Whether  there  is  any 
evidence  is  a  question  for  the  Court  as  judges, 
but  whether  the  evidence  is  sufficient  is  a  ques 
tion  for  the  Court  as  jury  to  determine,  and 
this  rule  applies  to  the  admissibility  of  every 
kind  of  evidence,  written  as  well  as  oral." 
Benet,  pp.  225,  226. 

These  citations  may  be  indefinitely  multi 
plied,  for  this  principle  is  as  true  in  the  law  as 
any  physical  fact  in  the  exact  sciences.  It  is  not 
contended,  indeed,  that  any  degree  of  doubt  is 
sufficient  to  acquit,  but  the  doubt  must  be  of  a 
reasonable  nature,  so  as  to  overset  the  moral 
evidence  of  guilt;  a  mere  possibility  of  inno 
cence  will  not  suffice,  for,  upon  human  testi 


mony,  no  case  is  free  from  possible  innocence. 
Even  the  most  direct  evidence  of  crime  may 
possibly  be  mistaken.  But  the  doubt  required 
by  the  law  must  be  so  consonant  with  reason 
as,  in  analogous  circumstances,  would  affect  the 
action  of  a  reasonable  creature  concerning  his 
own  affairs.  We  may  make  the  nature  of  such  a 
doubt  clearer  to  the  Court  by  alluding  to  a  very 
common  rule  in  the  application  of  the  general 
principle  in  certain  cases,  and  the  rule  will 
readily  appeal  to  the  judgment  of  the  Coyrt  as 
a  remarkable  and  singularly  beautiful  example 
of  the  inexorable  logic  with  which  the  law  ap 
plies  its  own  unfailing  reason. 

Thus,  in  cases  of  conspiracy,  and  some  others, 
where  many  persons  are  charged  with  joint 
crime,  and  where  the  evidence  against  most  of 
them  must,  of  necessity,  be  circumstantial,  the 
plea  of  "reasonable  doubt"  becomes  peculiarly 
valuable  to  the  separate  accused,  and  the  mode 
in  which  it  is  held  it  can  best  be  applied  is  the 
test  whether  the  facts  as  proved,  circumstantial, 
as  supposed,  can  be  made  to  consist  just  as 
reasonably  with  a  theory  that  is  essentially  dif 
ferent  from  the  theory  of  guilt. 

If,  therefore,  in  the  development  of  the  whole 
facts  of  a  conspiracy,  all  the  particular  facts 
against  a  particular  person  can  be  taken  apart 
and  shown  to  support  a  reasonable  theory  that 
excludes  the  theory  of  guilt,  it  can  not  be  de 
nied  that  the  moral  proof  of  the  latter  is  so 
shaken  as  to  admit  the  rule  concerning  the  pre 
sumption  of  innocence.  For  surely  no  man 
should  be  made  to  suffer  because  certain  facts 
are  proved  against  him,  which  ai-e  consistent 
with  guilt,  when  it  can  be  shown  that  they  are 
also,  and  more  reasonably,  consistent  with  in 
nocence.  And,  as  touching  the  conspiracy 
here  charged,  we  suppose  there  are  hundreds 
of  innocent  persons,  acquaintances  of  the 
actual  assassin,  against  whom,  on  the  social 
rule  of  llnoscitur  a  sociis,"  mercifully  set  aside 
in  law,  many  facts  might  be  elicited  that  would 
corroborate  a  suspicion  of  participation  in  his 
crime;  but  it  would  be  monstrous  that  they 
should  suffer  from  that  theory  when  the  same 
facts  are  rationally  explainable  on  other  the 
ories. 

The  distinguished  Assistant  Judge  Advocate, 
Mr.  Bingham,  who  has  brought  to  the  aid  of 
the  prosecution,  in  this  trial,  such  ready  and 
trenchant  astuteness  in  the  law,  has  laid  the 
following  down  as  an  invariable  rule,  and  it 
will  pass  into  the  books  as  such: 

"A  party  who  conspires  to  do  a  crime  may 
approach  the  most  upright  man  in  the  world, 
with  whom  he  had  been,  before  the  criminality 
was  known  to  the  world,  on  terms  of  intimacy, 
and  whose  position  in  the  world  was  such  that  he 
might  be  on  terms  of  intimacy  ivith  reputable  gentle 
men.  It  is  the  misfortune  of  a  man  that  is  ap 
proached  in  that  way;  it  is  not  his  crime,  and  it 
is  not  COLORABLY  his  crime  either.'" 

This  rule  of  construction,  we  humbly  submit, 
in  connection  with  the  question  of  doubt,  has  a 
direct  and  most  weighty  bearing  upon  the  case 
of  our  client.  Some  indication  of  the  mode  in 
which  we  propose  to  apply  it  may  be  properly 
stated  here.  Now,  in  all  the  evidence,  there  is 
not  a  shadow  of  direct  and  positive  proof  which 


292 


THE    CONSPIRACY    TRIAL. 


connects  Mrs.  Surratt  with  a  participation  in 
this  conspiracy  alleged,  or  with  any  knowledge 
of  it.  Indeed,  considering  the  active  part  she 
is  charged  with  taking,  and  the  natural  com 
municativeness  of  her  sex,  the  case  is  most 
singularly  and  wonderfully  barren  of  even  cii'- 
cumstantial  facts  concerning  her.  But  all  there 
is,  is  circumstantial.  Nothing  is  proved  against 
her,  except  some  few  detached  facts  and  cir 
cumstances,  lying  around  the  outer  circle  of 
the  alleged  conspiracy,  and  by  no  means  neces 
sarily  connected  with  guilty  intent  or  guilty 
knowledge. 

It  becomes  our  duty  to  see : 

1.  AY  hat  these  facts  are. 

2.  The  character   of  the  evidence  in  support 
of  them,   and  of  the   witnesses  by  whom  they 
are  said  to  be  proven.     And, 

3.  Whether   they  are   consistent  with  a  rea 
sonable  theory  by  which  guilt  is  excluded. 

We  assume,  of  course,  as  a  matter  that  does 
not  require  argument,  that  she  has  committed 
no  crime  at  all,  even  if  these  facts  be  proved, 
unless  there  is  the  necessary  express  or  implied 
criminal  intent,  for  guilty  knowledge  and  guilty 
intent  are  the  constituent  elements,  the  princi 
ples  of  all  crime.  The  intent  and  malice,  too, 
in  her  case  must  be  express,  for  the  facts  proved 
against  her,  taken  in  themselves,  are  entirely 
and  perfectly  innocent,  and  are  not  such  as 
give  rise  to  a  necessary  implication  of  malice. 
This  will  not  be  denied.  Thus,  when  one  com 
mits  a  violent  homicide,  the  law  will  presume 
the  requisite  malice;  but  when  one  only  de 
livers  a  message,  which  is  an  innocent  act  in 
itself,  the  guilty  knowledge,  malice  and  intent, 
that  are  absolutely  necessary  to  make  it  crim 
inal,  must  be  expressly  proven  before  any 
criminal  consequences  can  attach  to  it.  And, 
to  quote,  "Knowledge  and  intent,  when  ma 
terial,  must  be  shown  by  the  prosecutor." 
Whartori s  American  Criminal  Law,  sec.  631.  The 
intent  to  do  a  criminal  act,  as  denned  by 
Bouvier,  implies  and  means  a  pre-conceived 
purpose  and  resolve,  and  'determination  to 
commit  the  crime  alleged.  To  quote  again: 
"But  the  intent  or  guilty  knowledge  must  be 
brought  directly  home  to  the  defendant."  Whar 
tori  s  American  Criminal  Law,  sec.  685.  When  an 
act,  in  itself  indifferent,  becomes  criminal,  if 
done  with  a  particular  intent,  then  the  intent 
must  be  proved  and  found."  3  Grcenleaf,  sec. 
13. 

In  the  light  of  these  principles,  let  us  ex 
amine  the  evidence  as  it  affects  Mrs.  Surratt. 
1.  What  are  the  acts  she  has  done?  The  speci 
fication  against  her,  in  the  general  charge,  is  as 
follows: 

"And  in  further  prosecution  of  the  said  con 
spiracy,  Mary  E.  Surratt  did,  at  Washington 
city,  and  within  the  military  department  and 
military  lines  aforesaid,  on  or  before  the  6th 
day  of  March,  A.  D.  1865,  and  on  divers  other 
days  and  times  between  that  day  and  the  20th 
day  of  April,  A.  D.  1865,  receive,  entertain, 
harbor  and  conceal,  aid  and  assist  the  said  John 
Wilkes  Booth,  David  E.  Herold,  Lewis  Payne, 
John  H.  Surratt,  Michael  O'Laughlin,  George 
A.  Atzerodt,  Samuel  Arnold,  and  their  confed 
erates,  with  knowledge  of  the  murderous  and 


traitorous  conspiracy  aforesaid,  and  with  intent 
to  aid,  abet  and  assist  them  in  the  execution 
thereof,  and  in  escaping  from  justice  after  the 
murder  of  the  said  Abraham  Lincoln,  as  afore 
said." 

The  first  striking  fact  proved  is  her  acquaint 
ance  with  J.  Wilkes  Booth — that  he  was  an  oc 
casional  visitor  at  her  house.  From  the  evidence, 
if  it  is  to  be  relied  on,  if.  distinctly  appears 
that  this  acquaintance  commenced  the  latter 
part  of  last  January,  in  the  vicinage  of  three 
months  only  before  the  assassination  of  the 
President,  and,  with  slight  interruptions,  it 
was  continued  down  to  the  day  of  the  assassi 
nation  of  the  President.  Whether  he  was  first 
invited  to  the  house  and  introduced  to  the  fam 
ily  by  Wreichmann,  John  II.  Surratt,  or  some 
other  person,  the  evidence  does  not  disclose. 
When  asked  by  the  Judge  Advocate  "whom  did 
he  call  to  see,"  the  witness,  \Veichmann,  re 
sponded,  "He  generally  called  for  Mr.  Surratt — 
John  H.  Surratt — and,  in  the  absence  of  John 
H.  Surratt,  he  would  call  for  Mrs.  Surratt."  t 

Before  calling  the  attention  of  the  Commis 
sion  to  the  next  evidence  of  importance  against 
Mrs.  Surratt,  we  desire  to  refresh  the  recollec 
tion  of  the  Court  as  to  the  time  and  manner, 
and  by  whom,  according  to  the  testimony  of 
Lloyd,  the  carbines  were  first  brought  to  his 
(Lloyd's)  house. 

From  the  official  record  the  following  is 
taken: 

Q.  Will  you  state  whether  or  not,  some  five 
or  six  weeks  before  the  assassination  of  the 
President,  any,  or  all  of  these  men,  about  whom 
I  have  inquired,  came  to  your  house? 

A.  They  were  there. 

Q.  All  three  together? 

A.  Yes;  John  II.  Surratt,  Herold  and  Atze 
rodt  were  there  together. 

Q.  What  did  they  bring  to  your  house,  and 
what  did  they  do  there? 

A.  When  they  drove  up  there,  in  the  morn 
ing,  John  H.  Surratt  and  Atzerodt  came  first; 
they  went  from  my  house,  and  went  toward  T. 
B.,  a  post-oflice  kept  about  five  miles  below 
there.  They  had  not  been  gone  more  than  half 
an  hour  when  they  returned  with  Herold ;  then 
the  three  were  together — Herold,  Surratt  and 
Atzerodt. 

Q.  What  did  they  bring  to  your  house? 

A.  I  saw  nothing  until  they  all  three  came 
into  the  bar-room.  I  noticed  one  of  the  bug 
gies — the  one  I  supposed  Herold  was  driving  or 
went  down  in — standing  at  the  front  gate.  All 
three  of  them,  when  they  came  into  the  bar 
room,  drank,  I  think,  and  then  John  Surratt 
called  me  into  the  front  parlor,  and  on  the  sofa 
were  two  carbines,  with  ammmunition.  I  think 
he  told  me  they  were  carbines. 

Q.  Anything  beside  the  carbines  and  am 
munition? 

A.  There  was  a  rope  and  also  a  monkey- 
wrench. 

Q.     How  long  a  rope  ? 

A.  I  can  not  tell.  It  was  in  a  coil — a  right 
smart  bundle — probably  sixteen  or  twenty 
feet. 

Q.     Were  those   articles  left  at  your  house? 

A.     Yes,  sir;  Surratt  asked  me  to  take  care 


ARGUMENT    OF    FREDERICK    A.    AIKEN. 


293 


of  them,  to  conceal  the  carbines.  I  told  him 
there  was  no  place  there  to  conceal  them,  and 
I  did  not  wish  to  keep  such  things  in  the  house. 

Q.  You  say  that  he  asked  you  to  conceal 
those  articles  for  him? 

A.  Yes,  sir;  he  asked  me  to  conceal  them. 
1  told  him  there  was  no  place  to  conceal  them. 
He  then  carried  me  into  a  room  that  1  had 
never  been  in,  which  was  just  immediately 
above  the  store  room,  as  it  were  in  the  back 
building  of  the  house.  I  had  never  been  in 
that  room  previous  to  that  time.  He  showed 
mo  where  I  could  put  them,  underneath  the 
joists  of  the  house — the  joists  of  the  second 
floor  of  the  main  building.  This  little  unfin 
ished  room  will  admit  of  anything  between 
the  joists. 

Q.     Were  they  put  in  that  place  ? 

A.  They  were  put  in  there  according  to  his 
directions. 

Q.     Were  they  concealed  in  that   condition? 

A.  Yes,  sir;  I  put  them  in  there.  I  stated 
to  Colonel  Wells  through  mistake,  that  Surratt 
put  them  there  ;  but  I  put  them  in  there  myself. 
I  carried  the  arms  up  myself. 

Q.     How  much  ammunition  was  there? 

A.     One  cartridge-box. 

Q.  For  what  purpose,  and  for  how  long,  did 
he  ask  you  to  keep  these  articles? 

A.  I  am  very  positive  that  he  said  he  would 
call  for  them  in  a  few  days.  He  said  he  just 
wanted  them  to  stay  for  a  few  days  and  he 
would  call  for  them. 

It  also  appears  in  evidence  against  Mrs. 
Surratt,  if  the  testimony  is  to  be  relied  on,  that 
on  the  Tuesday  previous  to  the  murder  of  the 
President,  the  llth  of  April,  she  met  John  M. 
Lloyd,  a  witness  for  the  prosecution,  at  Union- 
town,  when  the  following  took  place: 

Question  by  the  Judge  Advocate: 

Q.  Did  she  say  anything  to  you  in  regard 
to  those  carbines? 

A.  When  she  first  broached  the  subject  to 
me,  I  did  not  know  what  she  had  reference  to; 
then  she  came  out  plainer,  and  I  am  quite  pos 
itive  she  asked  me  about  the  "shooting  irons." 
I  am  quite  positive  about  that,  but  not  alto 
gether  positive.  I  think  she  named  "shooting 
irons,"  or  something  to  call  my  attention  to 
those  things,  for  I  had  almost  forgotten  about 
their  being  there.  I  told  her  that,  they  were  hid 
away  far  back — that  I  was  afraid  the  house 
would  be  searched,  and  they  were  shoved  far 
back.  She  told  me  to  get  them  out  ready;  they 
would  be  wanted  soon. 

Q.  Was  her  question  to  you  first,  whether 
iliey  were  still  there,  or  what  was  it? 

A.  Really,  I  can  not  recollect  the  first  ques 
tion  she  put  to  me.  I  could  not  do  it  to  save 
my  life. 

On  the  afternoon  of  the  14th  of  April,  at 
about  half-past  five,  Lloyd  again  met  Mrs.  Sur 
ratt,  at  Surrattsville,  at  which  time,  according 
to  his  version,  she  met  him  by  the  wood-pile, 
near  the  house,  and  told  him  to  have  those 
shooting  irons  ready  that  night,  there  would 
be  some  parties  calling  for  them,  and  that  she 
gave  him  something  w.rappcd  in  a  piece  of 
paper,  and  asked  him  to  get  two  bottles  of 
whisky  ready  also.  This  message  to  Mr.  Lloyd 


is  the  second  item  of  importance  against  Mrs. 
Surratt,  and  in  support  of  the  specification 
against  her.  The  third  and  last  fact  that  makes 
against  her  in  the  minds  of  the  Court,  is  the 
one  narrated  by  Major  H.  W.  Smith,  a  witness 
for  the  prosecution,  who  states  that  while  at 
the  house  of  Mrs.  Surratt,  on  the  night  of  the 
17th  of  April,  assisting  in  making  the  arrest 
of  its  inmates,  the  prisoner,  Payne,  came  in. 
He  (Smith)  stopped  to  the  door  of  the  parlor 
and  said  :  "Mrs.  Surratt,  will  you  step  here  a 
minute?"  As  Mrs.  Surratt  came  forward,  he 
asked  her  the  question,  u  Do  you  know  this 
man?"  She  replied,  quoting  the  witness'  lan 
guage,  "Before  God,  sir,  I  do  not  know  this 
man,  and  I  have  never  seen  him."  An  addi 
tion  to  this  is  found  in  the  testimony  of  the 
same  witness,  as  he  was  drawn  out  by  the 
Judge  Advocate.  The  witness  repeats  the 
language  of  Mrs.  Surratt,  "Before  God,  I  do 
not  know  this  man,  and  have  never  seen  him, 
and  did  not  hire  him  to  dig  a  gutter  for  me." 
The  fact  of  the  photographs  and  card  of  the 
State  arms  of  Virginia  have  ceased  to  be  of  the 
slightest  importance,  since  the  explanations 
given  in  evidence  concerning  them,  and  need 
not  be  alluded  to.  If  there  is  any  doubt  as  to 
whom  th^y  all  belonged,  reference  to  the  testi 
mony  of  Misses  Surratt  and  Fitzpatrick  will 
settle  it. 

These  three  circumstances  constitute  the  part 
played  by  the  accused,  Mary  E.  Surratt,  in  this 
great  conspiracy.  They  are  the  acts  she  has 
done.  They  are  all  that  two  months  of  patient 
and  unwearying  investigation,  and  the  most 
thorough  search  for  evidence  that  was  probably 
ever  made,  has  been  able  to  develop  against 
her.  The  acquaintance  with  Booth,  the  mes 
sage  to  Lloyd,  the  non-recognition  of  Payne, 
constitute  the  sum  total  of  her  receiving,  enter 
taining,  harboring,  and  concealing,  aiding, 
and  assisting  those  named  as  conspirators  and 
their  confederates,  with  knowledge  of  the  mur 
derous  and  traitorous  conspiracy,  and  with 
intent  to  aid,  abet,  and  assist  them  in  the  execu 
tion  thereof,  and  in  escaping  from  justice. 
The  acts  she  has  done,  in  and  of  themselves, 
are  perfectly  innocent.  Of  themselves  they  con 
stitute  no  crime.  They  are  what  you  or  I,  or 
any  of  us  might  have  done.  She  received  and 
entertained  Booth,  the  assassin,  and  so  did  a 
hundred  others.  She  may  have  delivered  a 
message  to  Lloyd — so  have  a  hundred  others. 
She  might  have  said  she  did  not  know  Payne — 
and  who  within  the  sound  of  my  voice  can  say 
that  they  know  him  now?  They  are  ordinary 
and  commonplace  transactions,  such  as  occur 
every  day  and  to  almost  everybody.  But  as  all 
the  case  against  her  must  consist  in  the  guilty 
intent  that  will  be  attempted  to  be  connected 
with  these  facts,  we  now  propose  to  show  that 
they  are  not  so  clearly  proven  as  to  free  them 
from  great  doubt,  arid,  therefore,  we  will  inquire. 

2d.  How  are  these  acts  proven?  Solely  by 
he  testimony  of  Louis  J.  Weichmannand  John 
M.  Lloyd.  Here  let  us  state  that  we  have  no 
malice  toward  either  of  them,  but  if  in  the 
analysis  of  their  evidence  we  should  seem  to 
t>e  severe,  it  is  that  error  and  duplicity  may  be 
exposed,  and  inncconce  protected. 


294 


THE    CONSPIRACY   TRIAL. 


"We  may  start  out  with  the  proposition  that  a 
body  of  men.  banded  together  for  the  consum 
mation  of  an  unlawful  act  against  the  Govern- 


next  morning,  when  he  left  in  the  early  train 
for  Baltimore.  About  three  weeks  after  that 
Payne  called  again.  Says  Weichmann,  "I 


ment,  naturally  would  not  disclose  their  purpose  j  again  went  to  the  door,  and  I  again  ushered 
and  hold  suspicious  consultations  concerning  it  [him  into  the  parlor;"  but  says  he  had  forgotten 
in  the  presence  continually  of  an  innocent  his  name,  and  only  recollected  that  he  had  given 


party.  In  the  light  of  this  fair  presumption, 
let  us  look  at  the  ACTS  or  WEICHMANN,  as  dis 
closed  bv  his  own  testimony.  Perhaps  the  most 
singular  and  astonishing  fact  that  is  made  to 
appear  is  his  omnipresence  and  co-action  with 
those  declared  to  be  conspirators,  and  his  pro 
fessed  and  declared  knowledge  of  all  their  plans 
and  purposes.  His  acquaintance  with  John  H. 
Surratt  commenced  in  the  fall  of  1859,  at  St. 
Charles  College,  Maryland.  In  January,  18G3, 
he  renewed  his  acquaintance  with  him  in  this 
city.  On  the  1st  of  November,  1864,  he  took 
board  and  lodgings  with  Mrs.  Surratt,  at  her 
house,  No.  541  H  street,  in  this  city.  If  this  tes 
timony  be  correct,  he  was  introduced  to  Booth 
on  the  15th  day  of  January,  1865.  At  this  first, 
very  first  meeting,  he  was  invited  to  Booth's 
room,  at  the  National,  where  he  drank  wine  and 
took  cigars  at  Booth's  expense.  After  consulta 
tion  about  something  in  an  outer  passage  be 
tween  Booth  and  the  party  alleged  to  be  with 
him  by  Weichmann,  they  all  came  into  the  room, 
and  for  the  first  time  business  was  proceeded 
with  in  his  presence.  After  that  he  met  Booth 
in  Mrs.  Surratt's  parlor  and  in  his  own  room, 
and  had  conversations  with  him.  As  near  as 
AVeichmann  recollects,  about  three  weeks  after 
his  introduction,  he  met  the  prisonei1,  Atzerodt, 
at  Mrs.  Surratt's.  (How  Atzerodt  was  received 
at  the  house  will  be  referred  to.)  About  the 
time  that  Booth  played  Pescara,  in  the  "Apos 
tate,"'  at  Ford's  theater,  Weichmann  attended 
the  theater  in  company  with  Surratt  and  At 
zerodt.  At  the  theater  they  were  joined  by 
Herold.  John  T.  Holahan,  a  gentleman  not 
suspected  of  complicity  in  the  great  tragedy, 
also  joined  the  company  at  the  theater.  After 
the  play  was  over,  Surratt,  Holahan  and  him 
self  went  as  far  as  the  corner  of  Tenth  and  E 
streets,  when  Surratt,  noticing  that  Atzerodt 
and  Herold  were  not  with  them,  sent  Weichmann 
back  for  them.  He  found  them  in  a  restaurant 
near  by,  in  conversation  with  Booth,  by  whose 
invitation  Weichmann  took  a  drink.  After  that 
the  entire  party  went  to  Kloman's,  on  Seventh 
street,  and  had  some  oysters.  The  party  there 
separated,  Surratt,  Weichmann  and  Holahan 
going  home.  In  the  month  of  March  last  the 
prisoner,  Payne,  according  to  Weichmann,  went 
to  Mrs.  Surratt's  house  and  inquired  for  John  H. 
Surratt.  "I  myself,"  says  Weichmann,  "went 
to  open  the  door,  and  he  inquired  for  Mr.  Sur 
ratt.  I  told  him  Mr.  Surratt  was  not  at  home, 
but  I  would  introduce  him  to  the  family,  and 
did  introduce  him  to  Mrs.  Surratt — under  the 
name  of  Wood."  What  more?  By  Weich- 
mann's  request  Payne  remained  in  the  house  al 
night.  He  had  supper  served  to  him  in  tin 
privacy  of  Weichmann's  own  room.  More  than 
that,  Weichmann  went  down  into  the  kitcher 
and  got  the  supper  and  carried  it  up  to  hin 
himself,  and  as  nearly  as  he  recollects,  it  was 
about  eight  weeks  previous  to  the  assassination 
Payne  remained  as  Weichruann's  guest  until  th 


he  name  of  Wood  on  the  former  visit,  when 
ne  of  the  ladies  called  Payne  by  that  name. 
3e  who  had  served  supper  to  Payne  in  his  own 
room,  and  had  spent  a  night  with  him,  could  not 


•ecollect  for  three  weeks  the  common 


of 


Wood,"  but  recollects  with  such  distinctness 
and  particularity  scenes  and  incidents  of  much 
greater  age,  and  by  which  he  is  jeopardizing 
:.he  lives  of  others.  Payne  remained  that  time 
ibout  three  days,  representing  himself  to  the 
amily  as  a  Baptist  preacher;  that  he  had  been 
n  prison  in  Baltimore  about  a  woek,  and  that 
ic  had  taken  the  oath  of  allegiance  and  was 
to  become  a  good  loyal  citizen.  To  Mrs. 
Surratt  this  seemed  eccentric,  and  she  said  "  he 
was  a  great  looking  Baptist  preacher.'''  "They 
ooked  upon  it  as  odd,  and  laughed  at  it."  It 
seems  from  Weichmann's  testimony  that  he 
igain  shared  his  room  with  Payne,  and  when 
returning  from  his  office  one  day,  and  finding  a 
false  mustache  on  the  table  in  his  room,  he  took 
t  and  threw  it  into  his  toilet  box,  and  after 
ward  with  a  box  of  paints,  in  his  trunk,  and 
the  mustache  was  subsequently  found  in  Weich- 
mann's  baggage.  When  Payne,  according  to 
Weichmann's  testimony,  inquired,  "Where  is 
my  mustache?"  Weichmann  said  nothing,  but 
"thought  it  rather  queer  that  a  Baptist  preacher 
should  wear  a  mustache."  He  says  he  did  not 
want  it  about  his  room;  "thought  no  honest 
person  had  any  reason  to  wear  a  false  mus 
tache,"  and  as  no  "honest  person"  (?)  should  be 
in  possession  of  it,  he  locked  it  up  in  his  own 
trunk.  Weichmann  professe-s  throughout  his 
testimony  the  greatest  regard  and  friendship 
for  Mrs.  Surratt  and  her  son.  Why  did  he  not, 
on  this  occasion,  and  while  his  suspicions  were 
aroused — if  he  is  an  honest  man,  why  did  he 
not  go  to  Mrs.  Surratt  and  communicate  them 
at  once  ?  She,  an  innocent  and  guileless  woman, 
not  knowing  what  was  occurring  in  her  own 
house;  he,  the  friend,  coming  into  possession 
of  important  facts,  and  not  making  them  known 
to  her,  the  head  of  the  household,  but  claiming 
now,  since  this  overwhelming  misfortune  has 
fallen  upon  Mrs.  Surratt,  that,  while  reposing 
in  the  very  bosom  of  the  family  as  a  friend  and 
confidant,  he  was  a  spy  and  an  informer!  and 
that,  we  believe,  is  the  best  excuse  the  prosecu 
tion  is  able  to  make  for  him.  His  account  and 
explanation  of  this  mustache  would  be  treated 
with  contemptuous  ridicule  in  a  civil  court. 

But  this  is  not  all.  Concede  Weichmann's 
account  of  the  mustache  to  be  true,  and  if  it 
was  not  enough  to  rouse  his  suspicions  that  all 
was  not  right,  he  states  that,  on  the  same  day, 
he  went  to  Surratt's  room  and  found  Payne 
seated  on  the  bed  with  Surratt,  playing  with 
bowie-knives,  and  surrounded  with  revolv 
ers  and  spurs.  Miss  Honora  Fitzpatrick 
testifies  that  Weichmann  was  treated  by  Mrs. 
Surratt  "  more  like  a  son  than  a  friend." 
Poor  return  for  motherly  care !  Guilty  knowl 
edge  of  and  participation  in  crime  or  in  wild 


AHGUMENT   OF   FREDERICK   A.   AIKEN. 


295 


schemes  for  the  capture  of  the  President,  would 
be  a  good  excuse  for  not  making  all  this  known 
to  Mrs.  Surratt.  In  speaking  of  the  spurs  and 
pistols.  Weichmann  knew  that  there  were  just 
tight  spurs,  and  two  long  navy  revolvers.  Bear 
in  mind,  we  ask  you,  gentlemen  of  the 


mann  and  Mrs.  Surratt  started  for  the  country. 
All  this  comes  out  on  his  first  examination 
in  chief.  The  following  is  also  told  in  his  first 
cross-examination :  Mrs.  Surratt  keeps  a 
boarding  house  in  this  city,  and  was  in  the 
habit  of  renting  her  rooms  out,  and  that  he  was 


Commission,  that  there  is  no  evidence  before  I  upon  very  intimate  terms  with  Surratt;  that 
you  showing  that  Mrs.  Surratt  knew  anything  j  they  occupied  the  same  room;  that  when  he 
nbout  these  things.  It  seems  farther  on,  about  I  and  Mrs.  Surratt  went  to  Surrattsville  on  the 
the  19th  of  March,  that  Weichmann  went  to  the  1 14th,  she  took  two  packages,  one  of  papers,  the 
Ilerudon  House  with  Surratt  to  engage  a  room,  j  contents  of  the  other  were  not  known.  That 
He  says  he  afterward  learned  that  it  was  for  |  persons  have  been  in  the  habit  of  going  to  Mrs. 
Payne,  from  Atzerodt,  but  contradicts  himself  |  Surratt:s  and  staying  a  day  or  two ;  that  At- 
in  the  same  breath  by  stating  that  he  inquired  j  zerodt  stopped  in  the  house  only  one  night;  that 
of  Atzerodt  if  he  was  going  to  see  Payne  at  the  |  the  first  time  Payne  came  to  the  house  he  was 
Herndon  House.  His  intimate  knowledge  ofjdresaed  genteelly,  like  a  gentleman;  that  he 
Surratt's  movements  between  Richmond  and  j  heard  both  Mrs.  Surratt  and  her  daughter  say 
Washington,  fixing  the  dates  of  the  trips  with  I  that  they  did  not  care  about  having  Atzerodt 
great  exactitude;  of  Surratt's  bringing  gold  brought  to  the  house  ;  and  at  the  conclusion,  in 
"back;  of  Surratt's  leaving  on  the  evening  of  (  swearing  as  to  Mrs.  Surratt's  character,  he  said 
the  3d  of  April  for  Canada,  spending  his  last  it  was  exemplary  and  lady-like  in  every  par- 
moments  here  with  Weichmann;  of  Surratt's  ticular,  and  apparently,  as  far  as  he  could  judge, 
telling  Weickmann  about  his  interviews  with  she  was  all  the  time,  from  the  1st  of  November 
Davis  and  Benjamin  in  all  this  knowledge !  up  to  the  14th  of  April,  "doing  her  duties  to 


concerning  himself,  and  associations  with  those 
named  as  conspirators,  he  is  no  doubt  truthful 
as  far  as  his  statements  extend,  but  when  he 
comes  to  apply  some  of  this  knowledge  to  others, 
he  at  once  shakes  all  faith  in  his  testimony 
bearing  upon  the  accused. 

"  Do  you  remember,"  the  question  was  asked 
him,  "early  in  the  month  of  April,  of  Mrs.  Sur 
ratt  having  sent  for  you  and  asking  you  to  give 
Mr.  Booth  notice  that  she  wished  to  see  him?'; 

Weichmann  in  his  reply  stated  that  she  did  ; 
that  it  was  on  the  2d  of  April,  and  that  he  found 
in  Mr.  Booth's  room  John  MeCullough,  the  actor, 
when  he  delivered  the  message.  One  of  two 
things  to  which  he  swears  in  this  statement 
can  not  be  true :  1.  That  he  met  John  McCul 
lough  in  Booth's  room,  for  we  have  McCullough's 
sworn  statement  that  at  that  time  he  was  not  in 
the  city  of  Washington,  and  if,  when  he  delivered 
the  message  to  Booth,  McCullough  was  in  the 
room,  it  could  not  have  been  on  the  2d  of  April. 

"  ST.  LAWRENCE  HALL,          | 
"  MONTREAL,  June  3,  1865.      / 

"  I  am  an  actor  by  profession,  at  present  fulfill 
ing  an  engagement  at  Mr.  Buckland's  theater, 
in  this  city.  I  arrived  here  on  the  12th  of 
May.  I  performed  two  engagements  at  Ford's 
theater,  in  Washington,  during  the  past  winter, 
the  last  one  closing  on  Saturday  evening,  25th 
of  March.  I  left  Washington  on  Sunday  even 
ing,  26th  March,  and  have  not  been  there  since. 
I  have  no  recollection  of  meeting  any  person 
by  the  name  of  Weichmann. 

"JOHN  MCCULLOUGH. 

"  Sworn  to  and  subscribed  before  me,  at  the 
United  States  Consulate  General's  in  Montreal, 
this  third  day  of  June,  A.  D.  1865. 

"  C.  H.  POWERS, 
"U.  S.  Vice  Consul  General." 

If  he  can  be  so  mistaken  about  those  facts? 
may  he  not  be  in  regard  to  the  whole  transac 
tion?  It  is  also  proved  by  Weichmann  that  be 
fore  Mrs.  Surratt  started  for  the  country,  on 
the  14th  of  April,  Booth  called ;  that  he  re 
mained  three  or  four  minutes,  and  then  Weich- 


God  and  man."  It  also  distinctly  appears  that 
Weichman'n  never  had  any  conversation  with 
Mrs.  Surratt  touching  any  conspiracy.  One 
thing  is  apparent  to  our  minds,  and  it  is  forced 
upon  us,  as  it  must  be  upon  every  reasonable 
mind,  that  in  order  to  have  gained  all  this 
knowledge  Weichmann  must  have  been  within 
the  inner  circle  of  the  conspiracy.  He  knows 
too  much  for  an  innocent  man,  and  the  conclu 
sion  is  perfectly  irresistible  that  if  Mrs.  Surratt 
had  knowledge  of  what  was  going  on,  and  had 
been,  with  others,  a  particeps  criminis  in  the 
great  conspiracy,  she  would  have  certainly  done 
more  than  she  did  or  has  been  shown  against 
her,  and  Weichmann  would  have  known  it. 
How  does  her  non-recognition  of  Payne,  her  ac 
quaintance  with  Booth,  and  the  delivery  of  the 
message  to  Lloyd,  compare  with  the  long  and 
startling  array  of  facts  proved  against  Weioh- 
mann  out  of  his  own  mouth?  All  the  facts 
point  strongly  to  him  as  a  co-conspirator. 

Is  there  a  word  on  record  of  conversation  be 
tween  Booth  and  Mrs.  Surratt?  That  they  did 
converse  together,  we  know;  but  if  anything 
treasonable  had  passed  between  them,  would 
not  the  quick  ears  of  Weichmann  have  caught  it, 
and  would  not  he  have  recited  it  to  this  Court? 

Wrhen  Weichmann  went,  on  Tuesday,  the  llth 
of  April,  to  get  Booth's  buggy,  he  was  not  asked 
by  Mrs.  Surratt  to  get  ten  dollars.  It  was  prof- 
ferred  by  Booth,  according  to  Weichmann,  and 
he  took  it.  If  Mrs.  Sm-ratt  ever  got  any  money 
from  Booth,  she  paid  it  back  to  him.  It  is  not 
her  character  to  be  in  any  one's  debt. 

There  was  no  intimacy  with  Booth,  as  Mrs. 
Surratt  has  proved,  but  only  common  acquaint 
ance,  and  such  as  would  warrant  only  occa 
sional  calls  on  Booth's  part,  and  only  intimacy 
would  have  excused  Mrs.  Surratt  to  herself  in 
accepting  such  a  favor,  had  it  been  made  known 
to  her.  Moreover,  Miss  Surratt  has  attested  to 
remarks  of  her  brother,  which  prove  that  inti 
macy  of  Booth  with  his  sister  and  mother  were 
not  desirable  to  him. 

The  preceding  facts  are  proven  by  statements 
made  by  Weichmann  during  his  first  examina- 


296 


THE    CONSPIRACY    TRIAL. 


tion.  But,  as  though  the  Commission  had  not 
sufficiently  exposed  the  character  of  one  of  its 
chief  witnesses  in  the  role  of  grand  conspira 
tor,  Weichmann  is  re-called  and  farther  attests 
to  the  genuineness  of  the  following  telegram: 

"NEW    YORK,  March  23d,  1865.— To    Weich 
mann,  Esq.,  541  II  street :  Tell   John    telegraph 


number  and  street  at  once." 
[Signed,] 


1 J.  BOOTH.' 


What  additional  proof  of  confidential  rela 
tions  between  Weichmann  and  Booth  could  the 
Court  desire?  If  there  was  a  conspiracy 
planned  and  maintained  among  the  persons 
named  in  the  indictment,  Weichmann  must  have 
had  entire  knowledge  of  the  same,  else  he  had 
not  been  admitted  to  that  degree  of  knowledge 
to  which  he  testifies;  and  in  such  case,  and  in 
the  alleged  case  of  Mrs.  Surratt's  complicity, 
Weichmann  must  have  known  the  same  by  cir 
cumstances  strong  enough  to  exclude  doubt, 
and  in  comparison  with  which  all  present  facts 
of  accusation  would  sink  into  insignificance. 

We  proceed  to  the  notice  and  review  of  the 
second  chief  witness  of  the  prosecution  against 
Mrs.  Surratt,  John  M.  Lloyd.  He  testifies  to 
the  fact  of  a  meeting  with  Mrs.  Surratt  at 
Uniontown  on  the  llth  of  April,  1865,  and  to 
a  conversation  having  occurred  between  Mrs. 
Surratt  and  himself,  in  regard  to  which  he 
states  :  "I  am  quite  positive  she  asked  me  about 
the  'shooting  irons;'  lam  quite  positive  about 


that,    but  not  altogether   positive ;  I   think   she 

named   shooting  irons,  or  something  to   call  my 

attention  to  those   things,  for  I  had  almost  for- I  edge  of  Booth  and  Ilerold  havii.g  called  at  his 

gotten  about  their  being  there."     Q.  "  Was  her   house,  it  afterward    appears,  by  his  own  testi- 


keeper,  and  others,  corroborate  the  testimony 
as  to  his  absolute  inebriation — he  attests  that 
he  positively  remembers  that  Mrs.  Surratt  said 
to  him:  "Mr.  Lloyd,  I  want  you  to  have  those 
shooting  irons  ready."  "  That  persons  would 
call  for  them."  "That  was  the  language  she 
made  use  of,  and  she  gave  me  this  other  thing 
to  give  to  whoever  called." 

In  connection  with  the  fact  that  Lloyd  can 
not  swear  positively  that  Mrs.  Surratt  men 
tioned  "  shooting  irons "  to  him  at  Uniontown, 
bear  in  mind  the  fact  that  Weichmann  sat  in 
the  buggy  on  the  same  seat  with  Mrs.  Surratt, 
and  he  swears  he  heard  nothing  about  "shoot 
ing  irons."  Would  not  the  quick  ears  of  Weich 
mann  have  heard  the  remark  had  it  been  made  ? 

The  gentlemen  of  the  Commission  will  please 
recollect  that  these  statements  were  rendered 
by  a  man  addicted  to  excessive  use  of  intoxi 
cating  liquors;  that  he  was  even  inordinately 
drunk  at  the  time  referred  to ;  that  he  had  vol 
untarily  complicated  himself  in  the  conceal 
ment  of  the  arms  by  J.  II.  Surratt  and  his 
friends;  that  he  was  in  a  state  of  maudlin  ter 
ror  when  arrested,  and  when  forced  to  confess, 
that  for  two  days  he  maintained  denial  of  all 
knowledge  that  Booth  and  Herold  had  been  at 
his  house;  and  that  at  last,  and  in  the  condi 
tion  referred  to,  he  was  coerced  by  threats  to 
confess,  and  in  a  weak  and  common  effort  to 
exculpate  himself  by  the  accusation  of  another, 
he  proceeded  to  place  blame  upon  Mrs.  Surratt 
by  statements  of  conversation  already  cited. 
Notwithstanding  his  utter  denial  of  all  knowl- 


question  to  you  first,  whether  they  were  there, 
or  what  was  it?"  A.  "  Really,  I  can  not  recol 
lect  the  first  question  she  put  to  me — I  could 


mony,  that  immediately  Herold  commanded 
him  (Lloyd)  "for  God's  sake,  make  haste  and 
get  those  things,"  he  comprehended  what 


not  do  it  to  save  my  life."  The  question  was  j  "things"  were  indicated,  without  definition,  and 
asked  Lloyd,  "During  this  conversation,  was  { brought  forth  both  carbines  and  whisky.  He 
the  word  carbine  mentioned  ?"  He  answered,  I  testifies  that  J.  H.  Surratt  had  told  him,  when 
"No."  "She  finally  came  out,  but  cannot  be  ]  depositing  the  weapons  in  concealment  in  his 
determined  about  it — tha't  she  said  shooting  i house,  that  they  would  soon  be  called  for,  but 


irons — asked  me  in  relation  to  them."  The 
question  was  then  asked:  "Can  you  swear,  on 
your  oath,  that  Mrs.  Surratt  mentioned  the 
words  'shooting  irons'  to  you  at  all?"  A.  "I 
am  very  positive  she  did."  Q.  "  Are  you  cer 
tain  ?"  A.  "I  am  very  positive  that  she  named 


did   not  instruct  him,  it   seems,  by  whom  they 
would  be  demanded. 

All  facts  connecting  Lloyd  with  the  case,  tend 
to  his  implication  and  guilt,  and  to  prove  that 
he  adopted  the  dernier  resort  of  guilt — accusa 
tion  and  inculpation  of  another.  In  case  Lloyd 


shooting  irons  on  both   occasions.     Not  so  pos-  i  were    innocent  and  Mrs.  Surratt  the  guilty  co- 


itive  as  to  the  first  as  I  am  about  the  last.' 

Here  comes  in  the  plea  of  "  reasonable  doubt." 
If  the  witness  himself  is  not  absolutely  posi 
tive  as  to  what  occurred,  and  as  to  the  conver 
sation  that  took  place,  how  can  the  jury  assume 


adjutrix  and  messenger  of  the  conspirators, 
Lloyd  would  have  been  able  to  cite  so  much 
more  open  and  significant  remarks  and  acts  of 
Mrs.  Surratt  that  he  would  not  have  been 
obliged  to  recall,  in  all  perversion  and  weak- 


to  act  upon  it    as  they    would  upon    a    matter  j  ness   of  uncertainty,    so  common  and  unmean- 
personally  concerning  themselves? 

On  this  occasion  of  Mrs.  Surratt's  visit  to 
Uniontown,  three  days  before  the  assassination, 
where  she  met  Lloyd,  and  where  this  conver 
sation  occurred  between  them,  at  a  time  when 
Lloyd  was,  by  presumption,  sober  and  not  in 
toxicated,  he  declares  definitely  before  the  Com 
mission  that  he  is  unable  to  recollect  the  con 
versation,  nor  parts  of  it,  with  distinctness. 
But  on  the  14th  of  April,  and  at  a  time  when, 
as  testified  by  his  sister-in-law,  he  was  more 
than  ordinarily  affected  by  intoxicating  drink 
--and  Capt.  Gwynn,  James  Lusby,  Knott,  bar- 


i  ing  deeds  and  speech  as  his  testimony  includes, 
It  is  upon  these  considerations  that  we  feel 
ourselves  safe  and  reasonable  in  the  position 
that  there  are  facts  and  circumstances,  both 
external  and  internal,  connected  with  the  tes 
timony  of  Weichmann  and  Lloyd,  which,  if 
they  do  not  destroy,  do  certainly  greatly  shake 
their  credibility,  and  which,  under  the  rule 
that  will  give  Mrs.  Surratt  the  benefit  of  all 
reasonable  doubts,  seem  to  forbid  that  she 
should  be  convicted  upon  the  unsupported  evi 
dence  of  these  two  witnesses.  But  even  admit 
ting  the  facts  to  be  proven  as  above  recited,  it 


ARGUMENT   OF   FREDERICK    A.    AIKEN. 


297 


remains  to  be  seen  where  is  the  guilty  knowl 
edge  of  the  contemplated  assassination ;  and 
this  brings  us  to  the  inquiry  whether  these 
facts  are  not  explainable  so  as  to  exclude  guilt. 
From  one  of  the  most  respected  of  legal  au 
thorities  the  following  is  taken:  "Whenever, 
therefore,  the  evidence  leaves  it  indifferent 
which  of  several  hypotheses  is  true,  or  merely 
establishes  some  finite  probability  in  favor  of 
one  hypothesis  rather  than  another,  such  evi 
dence  can  not  amount  to  proof.  The  maxim  of 
the  law  is  that  it  is  better  that  ninety-nine  of 
fenders  should  escape  than  that  one  innocent 


Mrs.  Offutt;  that,  while  at  Surrattsville,  she 
made  no  inquiry  for,  or  allusion  to,  Mr.  Lloyd, 
and  was  ready  to  return  to  Washington  when 
Lloyd  drove  up  to  the  house.  Does  not  this 
open  wide  the  door  for  the  admission  of  the  plea 
of  "reasonable  doubt?"  Had  she  really  been 
engaged  in  assisting  in  the  great  crime,  which 
makes  an  epoch  in  our  country's  history,  her 
only  object  and  most  anxious  wish  would  have 
been  to  see  Lloyd.  It  was  no  ruse  to  transact 
important  business  there  to  cover  up  what  tho 
uncharitable  would  call  the  real  business.  Cal- 
vert's  letter  was  received  by  her  on  the  fore 


man  should  be  condemned."     Starkie  on  Evidence.  I  noon    of  the   14th,    and    long   before    she    saw 
The  acts  of  Mrs.  Surratt  must  have  been  ac-J  Booth  that  day,  or  even  before  Booth  knew  that 


companied  with  a  criminal  intent  in  oi'der  to 
make  them  criminal.  If  any  one  supposes 
that  such  intent  existed,  the  supposition  comes 
alone  from  inference.  If  disloyal  acts  and 
constant  disloyal  practices;  if  overt  and  open 
action  against  the  Government  on  her  part  had 
been  shown  down  to  the  day  of  the  murder  of 
the  President,  it  would  do  something  toward 
establishing  the  inference  of  criminal  intent. 
On  the  other  hand,  just  the  reverse  is  shown. 
The  remarks  here  of  the  learned  and  honorable 
Judge  Advocate  are  peculiarly  appropriate  to 
this  branch  of  the  discussion,  and,  with  his 
authority,  we  waive  all  others: 

"If  the  Court  please,  I  will  make  a  single 
remark.  I  think  the  testimony  in  this  case  has 
proved,  what  I  believe  history  sufficiently  at 
tests,  how  kindred  to  each  other  are  the  crimes 
of  treason  against  a  nation  and  the  assassina 
tion  of  its  Chief  Magistrate.  I  think  of  those 
crimes,  the  one  seems  to  be,  if  not  the  neces 
sary  consequence,  certainly  a  logical  sequence 
from  the  other.  The  murder  of  the  President 
of  the  United  States,  as  alleged  and  shown, 
was  pre-eminently  a  political  assassination. 
Disloyalty  to  the  Government  was  its  sole,  its 
only  inspiration.  When,  therefore,  we  shall 
show,  on  the  part  of  the  accused,  acts  of  in 
tense  disloyalty,  bearing  arms  in  the  field 
against  that  Government,  we  show,  with  him, 
the  presence  of  an  animus  toward  the  Govern 
ment  which  relieves  this  accusation  of  much, 
if  not  all,  of  its  improbability.  And  this 
course  of  proof  is  constantly  resorted  to  in 
criminal  courts.  I  do  not  regard  it  as  in  the 
slightest  degree  a  departure  from  the  usages 
of  the  profession  in  the  administration  of  pub 
lic  justice.  The  purpose  is  to  show  that  the 


the  President  would  be  at  the  theater  that 
night,  Mrs.  Surratt  had  disclosed  her  intention 
to  go  to  Surrattsville,  and  had  she  been  one 
moment  earlier  in  her  start,  she  would  not  have 
seen  Booth  at  all.  All  these  things  furnish 
powerful  presumptions  in  favor  of  the  theory 
that,  if  she  delivered  the  message  at  all,  it  was 
done  innocently. 

In  regard  to  the  non-recognition  of  Payne, 
the  third  fact  adduced  by  the  prosecution 
against  Mrs.  Surratt,  we  incline  to  the  opinion 
that,  to  all  minds  not  fore-judging,  the  testi 
mony  of  Miss  A.  E.  Surratt,  and  various  friends 
and  servants  of  Mrs.  Surratt,  relative  to  phys 
ical  causes,  might  fully  explain  and  account 
for  such  ocular  remissness  and  failure.  In 
times  and  on  occasions  of  casual  meeting  of 
intimate  acquaintances  on  the  street,  and  of 
common  need  for  domestic  uses,  the  eyesight 
of  Mrs.  Surratt  had  proved  treacherous  and 
failing.  How  much  more  liable  to  fail  her  was 
her  imperfect  vision  on  an  occasion  of  excite 
ment  and  anxiety,  like  the  night  of  her  arrest 
and  the  disturbance  of  her  household  bjr  mili 
tary  officers,  and  when  the  person  with  whom 
she  was  confronted  was  transfigured  by  a  dis 
guise  which  varied  from  the  one  in  which  she 
had  previously  met  him,  with  all  the  wide  dif 
ference  between  a  Baptist  parson  and  an  earth- 
soiled,  uncouthly  dressed  digger  of  gutters? 
Anna  E.  Surratt,  Emma  Offutt,  Eliza  Holahan. 
Honora  Fitzpatrick,  Anna  Ward,  and  a  servant, 
attest  all  to  the  visual  incapacity  of  Mrs.  Sur 
ratt,  and  the  annoyance  she  experienced  there 
from,  in  passing  friends  without  recognition  in 
the  daytime,  and  from  inability  to  sew  or  read 
even  on  a  dark  day,  as  well  as  at  night.  The 
priests  of  her  church,  and  gentlemen  who  have 
prisoner,  in  his  mind  and  course  of  life,  was!  been  friendly  and  neighborhood  acquaintances 


prepared  for  the  commission  of  this  crime;  that, 
the  tendencies  of  his  life,  as  evidenced  by  open 
and  overt  acts,  lead  and  point  to  this  crime,  if 
not  as  a  necessary,  certainly  as  a  most  proba 
ble  result,  and  it  is  with  that  view,  and  that 
only,  that  the  testimony  is  offered." 

Is  there  anything  in  Mrs.  Surratt's  mind  and 
course  of  life  to  show  that  she  was  prepared 
for  the  commission  of  this  crime?  The  busi- 


of  Mrs.  Surratt  for  many  years,  bear  witness 
to  her  untarnished  name  and  discreet  and 
Christian  character,  and  absence  of  all  impu 
tation  of  disloyalty,  to  her  character  for  patri 
otism.  Friends  and  servants  attest  to  her  vol 
untary  and  gratuitous  beneficence  to  our  soldiers 
stationed  near  her;  and,  "in  charges  for  high 
treason,  it  is  pertinent  to  inquire  inlo  the  hu 
manity  of  the  prisoner  toward  those  represent- 


ness  transacted  by  Mrs.  Surratt  at  Surrattsville,  j  ing  the  Government"  is  the  maxim  of  the  law; 


on  the  14th,  clearly  discloses  her  only  purpose 
in  making  the  visit.  Calvert's  letters,  the 
package  of  papers  relating  to  the  estate,  the 
business  with  Nothe,  would  be  sufficiently  cle;ir 


and,  in  addition,  we  invite  your  attention  to 
the  singular  fact  that  of  the  two  officers  who 
bore  testimony  in  this  matter,  one  asserts  that 
the  hall,  wherein  Payne  sat,  was  illuminated 


to  most  minds,  when  added  to  the  fact  that  the'  by  a  full  head  of  gas;   the  other  that  the  gas- 
other  unknown  package  had  been  handed  to  j  light  was  purposely  dimmed.  The  uncertainty  of 


298 


THE    CONSPIRACY   TRIAL. 


tlie  witness,  who  gave  testimony  relative  to  the 
coat  of  Payne,  may  also  be  recalled  to  your  notice. 

Should  not  this  valuable  testimony  of  loyal 
and  moral  character  shield  a  woman  from  ready 
belief,  on  the  part  of  judges  who  judge  her 
worthiness  in  every  way,  that  within  the  few, 
few  moments  in  which  Booth  detained  Mrs. 
Surratt  from  her  carriage,  already  waiting, 
when  he  approached  and  entered  the  house, 
she  became  so  converted  to  diabolical  evil  as  to 
hail  with  ready  assistance  his  terrible  plot, 
which  must  have  been  framed  (if  it  were  com 
plete  in  his  intent  at  that  hour,  half-past  two 
o'clock),  since  the  hour  of  eleven  that  day? 

If  any  part  of  Lloyd's  statements  is  true, 
and  Mrs.  Surratt  did  verily  bear  to  his  or  Mrs. 
Offutt's  hands  the  field-glass,  enveloped  in 
paper,  by  the  evidence  itself,  we  may  believe 
she  knew  not  the  nature  of  the  contents  of  the 
package;  and,  had  she  known,  what  evil  could 
she,  or  any  other,  have  attached  to  a  commis 
sion  of  so  common  a  nature?  No  evidence  of 
individual  or  personal  intimacy  with  Booth  has 
been  adduced  against  Mrs.  Surratt;  no  long 
and  apparently  confidential  interviews;  no  in 
dications  of  a  private  comprehension  mutual 
between  them;  only  the  natural,  and  not  fre 
quent,  custom  on  the  part  of  Booth — as  any 
other  associate  of  her  son  might  and  doubtless 
did  do — of  inquiring  through  the  mother,  whom 
he  would  request  to  see,  of  the  son  who,  he 
would  learn,  was  absent  from  home.  No  one 
has  been  found  who  could  declare  any  appear 
ance  of  the  nursing  or  mysteriously  discussing 
of  anything  like  conspiracy  within  the  walls 
of  Mrs.  Surratt's  house.  Even  if  the  son  of 
Mrs.  Surratt,  from  the  significancies  of  asso 
ciations,  is  to  be  classed  with  the  conspirators, 
if  such  body  existed,  it  is  monstrous  to  suppose 
tli at  the  son  would  weave  a  net  of  circunistan- 
cial  evidences  around  the  dwelling  of  his 
widowed  mother,  were  he  never  so  reckless  and 
sin-determined;  and  that  they  (the  mother  and 
the  son)  joined  hands  in  such  dreadful  pact,  is 
more  monstrous  still  to  be  thought. 

A  mother  and  son  associate  in  crime  !  and 
such  a  crime  as  this  half  of  the  civilized  world 
never  saw  matched,  in  all  its  dreadful  bearings  ! 
Our  judgments  can  have  hardly  recovered  their 
unprejudiced  poise  since  the  shock  of  the  late 
horrors,  if  we  can  contemplate  with  credulity 
«uch  a  picture,  conjured  by  the  unjust  spirits 
of  indiscriminate  accusation  and  revenge.  A 
crime  which,  in  its  public  magnitude,  added  to 
its  private  misery,  would  have  driven  even  the 
Atis-haunted  heart  of  a  Medici,  a  Borgia,  or  a 
Madame  Bocarme  to  wild  confession  before  its 
accomplishment,  and  daunted  even  that  soul,  of 
all  the  recorded  world  the  most  eager  for  nov 
elty  in  license,  and  most  unshrinking  in  sin — 
the  indurated  soul  of  Christina  of  Sweden  ; 
such  a  crime  as  profoundest  plotters  within 
padded  walls  would  scarcely  dare  whisper ; 
the  words  forming  the  expression  of  which, 
spoken  aloud  in  the  upper  air,  would  convert 
all  listening  boughs  to  aspens,  and  all  glad 
Bounds  of  nature  to  shuddering  wails.  And 
this  made  known,  even  surmised,  to  a  woman  ! 
a  mater  familias,  the  good  genius,  the  " placens 
uxor"  of  a  home  where  children  had  gathered  all 


the  influences  of  purity  and  the  reminiscences 
of  innocence,  where  RELIGION  watched,  and  the 
CHURCH  was  MINISTER  and  TEACHER. 

Who — were  circumstantial  evidence  strong 
and  conclusive,  such  as  only  time  and  the  slow 
weaving  fates  could  elucidate  and  deny — who 
will  believe,  when  the  mists  of  uncertainty 
which  cloud  the  present  shall  have  dissolved, 
that  a  woman  born  and  bred  in  respectability 
and  competence — a  Christian  mother,  and  a 
citizen  who  never  oifended  the  laws  of  civil 
propriety  ;  whose  unfailing  attention  to  the 
most  sacred  duties  of  life  has  won  for  her  the 
name  of  "a  proper  Christian  matron;"  whose 
heart  was  ever  warmed  by  charity ;  whoso 
door  unbarred  to  the  poor,  and  whose  Penates 
had  never  cause  to  veil  their  faces ; — who  will 
believe  that  she  could  so  suddenly  and  so 
fully  have  learned  the  intricate  arts  of 
sin  ?  A  daughter  of  the  South,  her  life  asso 
ciations  confirming  her  natal  predilections,  her 
individual  preferences  inclined,  without  logic 
or  question,  to  the  Southern  people,  but  with  no 
consciousness  nor  intent  of  disloyalty  to  her 
Government,  and  causing  no  exclusion  from  her 
friendship  and  active  favors  of  the  people  of 
the  loyal  North,  nor  repugnance  in  the  dis 
tribution  among  our  Union  soldiery  of  all 
needed  comforts  within  her  command,  and  on 
all  occasions. 

A  strong  but  guileless-hearted  woman,  her 
maternal  solicitude  would  have  been  the  first 
denouncer,  even  abrupt  betrayer,  of  a  plotted 
crime  in  which  one  companion  of  her  son  could 
have  been  implicated,  had  cognizance  of  such 
reached  her.  Her  days  would  have  been  ag 
onized  and  her  nights  sleepless,  till  she  might 
have  exposed  and  counteracted  that  spirit  of 
defiant  hate  which  watched  its  moment  of  van 
tage  -to  wreak  an  immortal  wrong — till  she 
might  have  sought  the  intercession  and  abso 
lution  of  the  Church,  her  refuge,  in  behalf  of 
those  she  loved.  The  brains,  which  were  bold, 
and  crafty,  and  couchant  enough  to  dare  the 
world's  opprobrium  in  the  conception  of  a 
scheme  which  held  as  naught  the  lives  of  men 
in  highest  places,  never  imparted  it  to  the  in 
telligence,  nor  sought  the  aid  nor  sympathy  of 
any  living  woman,  who  had  not,  like  Lady 
Macbeth,  "unsexed  herself" — not  though  she 
were  wise  and  discreet  as  Maria  Theresa  or 
the  Castilian  Isabella.  This  woman  knew  it 
not.  This  woman,  who,  on  the  morning  pre 
ceding  that  blackest  day  in  our  country's 
annals,  knelt  in  the  performance  of  her 
most  sincere  and  sacred  duty  at  the  con 
fessional,  and  received  the  mystic  rite  of 
the  Eucharist,  knew  it  not.  Not  only  would 
she  have  rejected  it  with  horror,  but  such 
proposition,  presented  by  the  guest  who  had 
sat  at  her  hearth  as  the  friend  and  convive  of 
her  son,  upon  whose  arm  and  integrity  her 
widowed  womanhood  relied  for  solace  and  pro 
tection,  would  have  roused  her  maternal  wits  to 
some  sure  cunning  which  would  have  contra 
vened  the  crime  and  sheltered  her  son  from  the 
evil  influences  and  miserable  results  of  such 
companionship. 

The  mothers  of  Charles  the  IX  and  of  Nero 
could  harbor,  underneath  their  terrible  smiles, 


ARGUMENT    OF   FREDERICK   A.    AIKEN. 


299 


schemes  for  the  violent  and  unshriven  deaths, 
or  the  moral  vitiation  and  decadence  which 
would  painfully  and  graduall}'  remove  lives 
sprung  from  their  own,  were  they  obstacles  to 
their  demoniac  ambition.  But  they  wrought 
their  awful  romances  of  crime  in  lands  where 
the  sun  of  supreme  civilization,  through  a  gor 
geous  evening  of  Syberitish  luxury, was  sinking, 
with  red  tents  of  revolution,  into  the  night  of 
anarchy  and  national  caducity.  In  our  own 
young  nation,  strong  in  its  morality,  energy, 
freedom,  and  simplicity,  assassination  can  never 
be  indigenous.  Even  among  the  desperadoes 
and  imported  lazzaroni  of  our  largest  cities,  it  is 
comparatively  an  infrequent  cause  of  fear. 

The  daughters  of  women  to  whom,  in  their 
yet  preserved  abodes,  the  noble  mothers  who 
adorned  the  days  of  our  early  independence 
are  vividly  remembered  realities  and  not 
haunting  shades — the  descendants  of  earnest 
seekers  for  liberty,  civil  and  religious,  of  rare 
races,  grown  great  in  heroic  endurance,  in 
parity  which  comes  of  trial  borne,  and  in  hope 
born  of  conscious  right,  whom  the  wheels  of* 
Fortune  sent  hither  to  transmit  such  virtues — 
the  descendants  of  these  have  no  heart,  no  ear 
for  the  diabolisms  born  in  hot-beds  of  tyranny 
and  intolerance.  No  descendant  of  these,  no 
woman  of  this  temperate  land  could  have  seen, 
much  less  joined,  her  son,  descending  the  san 
guinary  and  irrepassable  paths  of  treason  and 
murder,  to  ignominious  death,  or  an  expatriated 
and  attainted  life,  worse  than  the  punishing 
wheel  and  bloody  pool  of  the  poets'  hell. 

In  our  country,  where  reason  and  moderation 
so  easily  quench  the  fires  of  insane  hate,  and 
where  "  La  Vendetta''1  is  so  easily  overcome  by 
the  sublime  grace  of  forgiveness,  no  woman 
could  have  been  found  so  desperate  as  to  sacri 
fice  all  spiritual,  temporal,  and  social  good, 
self,  offspring,  fame,  honor,  and  all  the  desiderata 
of  life,  and  time,  and  immortality,  to  the  com 
mission,  or  even  countenance,  of  such  a  deed 
of  horror  as  we  have  been  compelled  to  con 
template  the  two  past  months. 

In  a  Christian  land,  where  all  records  and 
results  of  the  world's  intellectual,  civil  and 
moral  advancement  mold  the  human  heart  and 
mind  to  highest  impulses,  the  theory  of  old  Hel- 
vetius  is  more  probable  than  desirable. 

The  natures  of  all  born  in  equal  station  are 
not  so  widely  varied  as  to  present  extremes  of 
vice  and  goodness,  but  by  the  effects  of  rarest 
and  severest  experience.  Beautiful  fairies  and 
terrible  gnomes  do  not  stand  by  each  infant's 
cradle,  sowing  the  nascent  mind  with  tenderest 
graces  or  vilest  errors.  The  slow  attrition  of 
vicious  associations  and  law-defying  indul 
gences,  or  the  sudden  impetus  of  some  terribly 
multiplied  and  social  disaster,  must  have  worn 
away  the  susceptibility  of  conscience  and  self 
respect,  or  dashed  the  mind  from  the  hight  of 
these  down  to  the  deeps  of  despair  and  reckless 
ness,  before  one  of  ordinary  life  could  take  coun 
sel  with  violence  and  crime.  In  no  such  man 
ner  was  the  life  of  our  client  marked.  It  was 
the  parallel  of  nearly  all  the  competent  masses; 
surrounded  by  the  scenes  of  her  earliest  recol 
lections,  independent  in  her  condition,  she  was 
satisfied  with  the  mundus  of  her  daily  pursuits, 


and  the  maintenance  of  her  own  and  children's 
status  in  society  and  her  church. 

Remember  your  wives,  mothers,  sisters  and 
gentle  friends,  whose  graces,  purity  and  careful 
affection  ornament  and  cherish  and  strengthen 
your  lives.  Not  widely  different  from  their 
natures  and  spheres  have  been  the  nature  and 
sphere  of  the  woman  who  sits  in  the  prisoner's 
dock  to-day,  mourning  with  the  heart  of  Alces- 
tis  her  children  and  her  lot ;  by  whose  desolated 
hearthstone  a  solitary  daughter  wastes  her  un- 
comforted  life  away  in  tears  and  prayers  and 
vigils  for  the  dawn  of  hope;  and  this  wretchedness 
and  unpiticd  despair  have  closed  like  a  shadow 
around  one  of  earth's  common  pictures  of  do 
mestic  peace  and  social  comfort,  by  the  one  sole 
cause — suspicion  fastened  and  fed  upon  the  facts 
of  acquaintance  and  mere  fortuitous  intercourse 
with  that  man  in  whose  name  so  many  miseries 
gather,  the  assassinator  of  the  President. 

Since  the  days  when  Christian  tuition  first 
elevated  womanhood  to  her  present  free,  refined 
and  refining  position,  man's  power  and  honor 
ing  regard  have  been  the  palladium  of  her  sex. 

Let  no  stain  of  injustice,  eager  for  a  sacrifice 
to  revenge,  rest  upon  the  reputation  of  the  men 
of  our  country  and  time. 

This  woman,  who,  widowed  of  her  natural 
protectors;  who,  in  helplessness  and  painfully 
severe  imprisonment,  in  sickness  and  in  grief 
ineffable,  sues  for  justice  and  mercy  from  your 
hands,  may  leave  a  legacy  of  blessings,  sweet 
as  fruition-hastening  showers,  for  those  you 
love  and  care  for,  in  return  for  the  happiness 
of  fame  and  home  restored,  though  life  be  ab 
breviated  and  darkened  through  this  world  by 
the  miseries  of  this  unmerited  and  woeful  trial. 
But  long  and  chilling  is  the  shade  which  just 
retribution,  slow  creeping  on  with  its  (ipede 
claudo"  casts  around  the  fate  of  him  whose 
heart  is  merciless  to  his  fellows  bowed  low  in 
misfortune  and  exigence. 

Let  all  the  fair  womanhood  of  our  land  hail 
you  with  a  paeon  of  joy  that  you  have  restored 
to  her  sex,  in  all  its  ranks,  the  aegis  of  impreg 
nable  legal  justice  which  circumvallates  and 
sanctifies  the  threshhold  of  home  and  the  pri 
vacy  of  home  life  against  the  rude  irruptions 
of  arbitrary  and  perhaps  malice-born  suspicion, 
with  its  fearful  attendants  of  arrest  and  incar 
ceration,  which  in  this  case  have  been  sufficient 
to  induce  sickness  of  soul  and  body. 

Let  not  this  first  State  tribunal  in  our  coun 
try's  history,  which  involves  a  woman's  name, 
be  blazoned  before  the  world  with  the  harsh 
tints  of  intolerance,  which  permits  injustice. 
But  as  the  benignant  heart  and  kindly  judging 
mind  of  the  world-lamented  victim  of  a  crime 
which  wound,  in  its  ramifications  of  woe,  around 
so  many  fates,  would  himself  have  counseled 
you,  let  the  heralds  of  PEACE  and  CHARITY,  with 
their  wool-bound  staves,  follow  the  fasces  and 
axes  of  JUDGMENT  and  LAW,  and  without  the 
sacrifice  of  any  innocent  Iphigenia,  let  the  ship 
of  State  lanch  with  dignity  of  unstained  sails 
into  the  unruffled  sea  of  UNION  and  PROSPERITY. 

MARY  E.  SUBRATT. 

By  FREDERICK  A.  AIKEN,  of  Counsel. 
ilEVKKDY  JOHNSON, 

JOHN  W.  CLAMPITT,  Associate  Counsel 


DEFENSE  OFGEORGE  A.  ATZERODT. 


W.    E.    DOS  TEE,    ESQ. 


May  it  please  the  Court: 

The  prisoner,  George  A.  Atzerodt,  is  charged 
with  the  following  specification:  "And  in 
further  prosecution  of  said  conspiracy,  and  its 
traitorous  and  murderous  designs,  the  said 
George  A.  Atzerodt  did,  on  the  night  of  the  14th 
of  April,  A.  D.  1865,  and  about  the  same  hour 
of  the  night  aforesaid,  within  the  military  de 
partment  and  military  lines  aforesaid,  lie  in 
wait  for  Andrew  Johnson,  then  Vice-President 
of  the  United  States  aforesaid,  with  the  intent, 
unlawfully  and  maliciously,  to  kill  and  murder 
him,  the  said  Andrew  Johnson."  In  support 
of  this  specification  the  prosecution  has  sub 
mitted  the  following  testimony  :  The  testimony 
of  Weichmann  and  Miss  Surratt,  that  he  was 
frequently  seen  in  company  Avith  Booth  at  the 
house  of  Mrs.  Surratt.  The  testimony  of 
Greenawalt,  that  Atzerodt  had  interviews  with 
Booth  at  the  Kimmell  House,  and  that  the  pris 
oner  once  said,  the  1st  of  April,  '"Greenawalt, 
I  am  pretty  near  broke,  though  I  have  friends 
enough  to  give  me  as  much  money  as  will  keep 
me  all  my  life.  I  am  going  away  one  of  these 
days,  but  I  will  return  with  as  much  money  as 
will  keep  me  all  my  lifetime."  The  testimony 
of  Marcus  P.  Norton,  that  he  overheard  him  in 
conversation  with  Booth,  in  which  it  was  said, 
about  the  evening  of  the  3d  of  March,  that, 
"If  the  matter  succeeded  as  well  with  Johnson 
as  it  did  with  old  Buchanan,  the  party  would  be 
terribly  sold;''  and,  also,  that  "The  character 
of  the  witnesses  would  be  such  that  nothing 
could  be  proved  by  them."  The  testimony  .of 
Col.  Kevins,  that  he  was  asked  by  the  prisoner, 
between  four  and  five  of  the  afternoon  of  the 
12th  of  April,  at  the  Kirk  wood  House,  to  point 
out  Mr.  Johnson  while  at  dinaer.  The  testi 
mony  of  John  Fletcher,  that  oh  or  about  April 
3d,  the  prisoner  owned  a  horse  and  saddle, 
which  he  afterward  said  was  sold  in  Montgom 
ery  county,  and  which  was  afterward  found 
near  Camp  Barry  Hospital,  on  the  night  of  the 
14th  of  April.  The  testimony  of  Fletcher,  also, 
that  on  the  evening  of  the  14th,  the  prisoner 
got  a  dark  bay  mare  at  Naylor's  (which  he  had 
brought  there  in  the  morning),  rode  her  away 
at  half-past  six,  brought  her  back  at  eight,  re 
turned  again  at  ten,  ordered  his  mare,  took  a 
drink;  s;iid,  "If  this  thing  happens  to-night, 
you  will  hear  of  a  present ;  "  and  of  the  mare, 
"  She  is  good  on  a  retreat ;  "  that  he  then  rode 
to  the  Kirk  wood  House,  came  out  again,  went 
3GO 


along  D  street,  and  turned  up  Tenth  street. 
The  testimony  of  Thomas  L.  Gardner,  that  the 
same  dark  bay  one-eyed  horse  found  near  Camp 
Barry,  was  sold  by  his  uncle,  George  Gardner, 
to  Wilkes  Booth.  Testimony  of  John  L.  Toney, 
that  the  same  horse  was  found  at  twelve  and  a- 
half  A.  M.,  Saturday,  the  15th  of  April,  near 
Camp  Barry,  about  three-quarters  of  a  mile 
east  of  the  Capitol.  The  testimony  of  Wash 
ington  Briscoe,  that  on  the  evening  of  the  14th, 
between  twelve  and  half-past  twelve,  the  pris 
oner  got  into  the  cars  near  the  Navy  Yard,  and 
asked  him  three  times  to  let  him  sleep  in  the 
store;  that  he  was  refused,  and  said  he  was 
going  to  the  Kimmell  House.  The  testimony 
of  Greenawalt,  again,  that  he  came  to  the  Kim 
mell  House  at  two  P.  M.,  and  in  company  with^a 
man  by  the  name  of  Thomas,  and  hesitated  to 
register  his  name,  and  went  away  in  the  morn 
ing,  about  five,  without  paying  his  bill.  Testi 
mony  of  Lieutenant  Kcim,  that  he  slept  in  the 
same  room  with  Atzerodt  that  night  at  the 
Kimmell  House,  and  when  Keim  spoke  of  the 
assassination,  he  said  "it  was  an  awful  affair," 
and  that  on  the  Sunday  before  he  saw  a  knife 
in  his  possession — "a  large  bowie-knife  in  a 
sheath  " — and  that  Atzerodt  remarked,  "If  one 
fails,  I  want  the  other."  Testimony  of  Wm. 
Clendenin,  that  he  found  a  knife  similar  to  the 
one  seen  by  Keim,  in  F  street,  between  Eighth 
and  Ninth  Streets,  opposite  the  Patent  Office,  at 
six  o'clock  of  the  morning  after  the  assassina 
tion.  Testimony  of  Robert  Jones  and  John  Lee, 
that  Atzerodt  took  a  room  at  the  Kirk  wood 
House,  No.  12G,  and  that  in  it,  on  the  morning 
of  the  15th,  were  found  a  coat  containing  a 
loaded  pistol  and  a  bowie-knife,  and  a  hand 
kerchief  marked  with  the  name  of  J.  Wilkes 
Booth.  Testimony  of  Provost  Marshal  McPhail, 
that  Atzerodt  confessed  he  threw  his  knife 
away  near  the  Herndon  House  ;  that  he  pawned 
his  pistol  at  Caldwell's  store,  at  Georgetown, 
and  borrowed  ten  dollars,  and  that  the  coat 
and  arms  at  the  Kirk  wood  House  belonged  to 
Herold.  Testimony  of  Sergeant  Gemmill,  that 
he  arrested  Atzerodt  near  Germaritown,  and 
that  he  denied  having  left  Washington  re 
cently,  or  having  had  anything  to  do  with  the 
assassination.  Testimony  of  Heiekiah  Met/,, 
that  on  the  Sunday  following  the  assassination 
Atzerodt  said  at  his  house,  "If  the  man  had 
followed  Gen.  Grant  that  was  to  have  followed 
him,  he  would  have  been  killed."  To  negative 
this  specification  the  defense  has  submitted  the 


ARGUMENT    OF   \V.    E.    DOSTER. 


301 


following  testimony:  The  testimony  of  Som 
erset  Leaman,  that  the  prisoner  said  at  the 
house  of  Mr.  Metz,  when  asked  whether  Gen. 
Grant  was  killed,  "No,  I  do  not  suppose  he 
was.  If  he  was  killed,  he  would  have  been 
killed  probably  by  a  man  that  got  on  the  same 
train  of  cars  that  he  did,"  and  that  he  never  used 
the  language  imputed  to  him  by  Mr.  Metz  ; 
that  he  was  confused,  but  that  the  daughter  of 
Mr.  Metz,  to  whom  he  was  paying  his  ad 
dresses,  was  showing  him  the  cold  shoulder  on 
that  day.  The  same  confirmed  by  James  E. 
Leaman.  The  testimony  of  James  Keleher,  pro 
prietor  of  a  livery  stable,  corner  of  Eighth 
and  E  streets,  that  Atzerodt  hired  a  dark  bay 
mare  from  his  stable  at  half-past  two  o'clock 
on  the  afternoon  of  the  14th.  wrote  his  name 
in  a  large  hand,  did  not  hesitate  to  put  down 
his  name,  willingly  gave  references,  told  him 
he  lived  in  Port  Tobacco,  and  was  a  coachma- 
ker  by  trade,  and  gave  the  names  of  John  Cook 
and  Stanley  Higgins  as  references.  Testimony 
of  Samuel  Smith,  that  the  bay  mare  was  re 
turned  about  eleven  o'clock  on  the  evening  of 
the  14th,  very  much  in  the  same  condition  as 
when  she  went  out :  no  foam  on  her.  Samuel 
McAllister,  that  the  prisoner  rode  up  to  the 
Kimmell  House  about  ten  o'clock  on  the  even 
ing  of  the  14th,  and  called  to  the  black  boy  to 
hold  his  mare.  Samuel  McAllister  further  re 
cognizes  the  knife  found  opposite  the  Herndon 
House,  and  the  new  revolver  pawned  at  Cald- 
well's,  as  having  been  in  the  possession  of  Atze 
rodt,  but  does  not  recognize  the  coat  found  at 
the  Kirkwpod  House,  in  Atzerodt's  room,  nor 
any  of  its  contents.  Provost  Marshal  McPhail's 
testimony,  to  show  the  coat  and  arms  belonged 
to  Herold.  The  testimony  of  Mrs.  Naylor,  to 
show  that  the  handkerchief  in  the  pocket  of  the 
coat  in  Atzerodt's  room  was  marked  with  the 
name  of  Herold's  sister.  The  testimony  of 
Hartman  Richter,  that  the  prisoner  came  to  his 
house  in  Montgomery  county,  Maryland,  made 
no  effort  to  escape,  worked  in  the  garden,  and 
went  about  among  the  neighbors.  Testimony 
of  Somerset  Leaman,  that  he  is  of  respectable 
family,  and  visited  the  most  respectable  fami 
lies  in  Montgomery  county.  Of  Samuel  Mc 
Allister,  again,  that  he  was  generally  consid 
ered  a  coward.  Of  Washington  Briscoe,  that 
he  was  a  noted  coward.  Of  Lewis  C.  Haw 
kins,  that  he  is  a  notorious  coward.  Of 
Henry  Brawner,  that  he  is  a  well-known  cow 
ard.  Testimony  of  Governor  Farwell,  that  he 
came  to  the  President's  room,  at  the  Kirkwood, 
immediately  after  the  assassination  ;  could  have 
seen  anybody  lying  in  wait,  but  saw  no  one; 
remained  there  half  an  hour,  but  no  one  at 
tempted  to  enter  by  violence.  Testimony  of 
William  A.  Browning,  private  secretary  to  Mr. 
Johnson,  that  the  Vice-President  was  in  his 
room  from  five  for  the  balance  of  the  evening. 
Testimony  of  Matthew  J.  Pope,  that  Atzerodt 
was,  on  the  12th,  about  noon,  at  his  stable,  try 
ing  to  sell  a  horse,  and  remained  there  until  he 
went  off  with  John  Barr.  Testimony  of  John 
Barr,  that  he  met  Atzerodt  on  that  day ;  knows 
it  was  on  the  12th,  because  the  same  day,  by 
his  memorandum,  he  made  two  spring  blocks. 
Testimony  ot  Henry  Brawner  and  Lewis  C. 


Hawkins,  to  show  that,  on  the  3d  of  March  he 
was  at  Port  Tobacco.  Testimony  of  Judge  Olin 
and  Henry  Burden,  that  they  do  riot  believe 
Marcus  P.  Norton  on  oath. 

Now,  the  prisoner  submits  that  the  testimony 
adduced  by  the  prosecution  fails  utterly  to  sup 
port  the  specification,  but  corroborates  his  own 
statement  in  every  particular.  First,  the  spe 
cification  charges  him  with  "lying  in  waif  for 
Andrew  Johnson,  the  Vice-President  of  the 
United  States,  "within  the  military  depart 
ment  and  military  lines  aforesaid."  The  evi 
dence  on  this  point  of  "lying  in  wait"  is  alto 
gether  circumstantial.  Colonel  Nevins  says  he 
inquired  for  President  Johnson  on  the  after 
noon  of  the  12th,  between  four  and  five.  This 
decrepit  gentleman,  sixty  years  of  age,  ac 
knowledges  that  he  never  saw  the  prisoner  af 
ter  that  until  the  day  he  gave  his  testimony, 
about  six  weeks  afterward,  although  he  saw  him 
but  for  a  minute  at  the  time  of  the  conversa 
tion,  and  describes  him  as  looking  exactly  as  he 
did  then.  Now,  all  the  other  witnesses  say  that 
Atzerodt  is  much  thinner;  all  of  them,  even 
his  most  intimate  friends,  have  had  difficulty  in 
recognizing  him,  and  yet  this  peremptory  old 
gentleman,  with  failing  eyesight,  says  he  looks 
just  the  same,  although  he  saw  him  but  for  a 
moment,  and  then  not  again  for  »ix  weeks. 
The  testimony  of  this  witness,  besides  the  nat 
ural  anxiety  of  a  Government  officer  to  serve 
his  Government,  and  of  an  old  one  to  retrench 
his  waning  importance,  is  incredible  on  the 
face  of  it ;  but  if  it  were  not,  it  is  absolutely 
contradicted,  beyond  a  doubt,  by  the  witnesses 
for  the  defense.  Matthew  Pope,  a  livery-stable 
keeper,  near  the  Navy  Yard,  says  a  man  came 
to  his  stable  and  tried  to  sell  him  a  horse  on 
the  noon  of  the  same  day  in  April.  He  can  not 
recognize  the  prisoner,  neither  can  he  give  the 
date,  only  he  knows  that  he  left  his  umbrella, 
and  that  he  went  off  with  John  J3arr,  and  was 
there  between  four  and  five.  John  Barr,  being 
called,  very  well  remembers  that  the  person 
who  let\  his  umbrella,  and  who  rode  off  from 
Pope's,  stable,  was  Atzerodt,  who  went  home 
with  him  to  supper;  and  he  knows  it  was  the 
day  that  he  made  two  spring  blocks  for  San 
derson  &  Miller,  and  he  sees  by  reference  to 
his  book  that  it  was  the  12th  of  April. 

The  testimony  of  Col.  Nevins  must,  therefore, 
fall  to  the  ground ;  and  while  it  is  conceded 
that  some  one  out  of  the  multitude  at  the  Kirk- 
wood  may  have  asked  the  Colonel  this  common 
question,  it  is  certain  that  this  man  was  not 
Atzerodt,  for  at  the  given  hour  and  day  he  was 
a  mile  from  the  house.  The  second  point 
brought  in  support  of  this  specification  is  the 
declaration  of  Marcus  P.  Norton,  a  lawyer,  from 
Troy,  New  York,  to  the  effect  that  he  saw  Atze 
rodt  in  company  with  Booth,  he  thinks,  on  the 
evening  of  the  3d  of  March,  at  the  National, 
and  heard  it  said  that,  "If  the  matter  succeeded 
as  well  with  Johnson  as  it  did  with  old  Bu 
chanan,  the  party  would  be  terribly  sold;''  also 
the  words,  "The  character  of  the  witnesses 
would  be  such  that  nothing  could  be  proved  by 
them."  Now,  the  prisoner  says  that  this  testi 
mony  is  a  deliberate  falsehood.  To  prove  that 
on  the  2d  and  3d  days  of  March  he  was  not  in 


302 


THE    CONSPIRACY   TRIAL. 


Washington,  he  brought  Henry  Brawner,  pro-  j  him.     The  third  strong  point  of  the  prosecution 
prietor  of  the  Brawner  House,  at  Port  Tobacco,    is,  that  Atzerodt  left  room  No.  120,  at  the  Kirk- 


who  says  he  knows  that  about  that  time  he  was 
at  home;  and  Lewis  P.  Hawkins  confirms  the 
declaration.  Neither  of  these  two  is  absolutely 
certain  of  the  date,  for  in  country  towns  people 
can  seldom  prove  their  exact  whereabouts  on  a 
given  day  three  months  back.  This  alone  would 
be  sufficient  to  throw  doubt  on  the  statements 
of  Norton.  But  there  is  other  evidence  that  he 
was  deliberately  making  testimony.  He  says 
that  on  the  same  day  he  saw  Dr.  Mudd  asking 
for  Booth.  Dr.  Mudd  has  shown  that  on  that 
day  he  was  not  at  the  National  Hotel,  nor  in 
Washington  city.  This  ingenious  fabricator  of 
testimony  (in  whose  mind  the  bad  character  of 
himself  as  witness  seems  to  dominate,  and  who, 
therefore,  appears  to  put  his  own  thoughts  into 
the  mouths  of  others),  chose  the  3d  of  March, 
the  day  before  the  inauguration,  to  give  his 
story  the  probability  which  arises  from  connect 
ing  conversation  with  a  given  place.  He  ap 
pears,  before  he  wove  this  fine  perjury,  to  have 
omitted  reading  the  testimony  of  Conover,  who 
says  the  name  of  Andrew  Johnson  was  not 
joined  in  the  plot  until  after  the  inauguration, 
and  that  at  that  time  the  name  of  Mr.  Hamlin 
was  on  the  list;  and  so  he  perpetrated  an  egre 
gious  blunder.  And  he  seems  to  have  forgot 
ten  how  strange  it  would  seem,  if,  after  having 
heard  these  things  at  the  very  time,  eight  years 
ago,  when  a  plot  was  suspected  to  poison  Mr. 
Buchanan,  he  should  neither  have  suspected 
nor  informed  of  such  a  plot,  nor  how  curious 
an  instance  of  memory  that  he  should  remem 
ber  words  exactly  for  three  months,  and  faces, 
although  he  is  short-sighted,  and  yet  remembers 
no  others.  As  we  might  conclude  from  internal 
evidence,  the  man  is  a  notable  false  witness. 
It  is  in  evidence  that  he  takes  patent  cases, 


wood  House,  taking  the  key  along,  and  in  his 
room  was  found  a  coat,  containing  a  bowie- 
knife,  a  pistol,  loaded,  and  handkerchiefs  marked 
with  the  name  of  J.  Wilkes  Booth,  together 
with  notes  on  the  Ontario  Bank,  in  the  name 
of  Booth,  and  memoranda  showing  they  once 
belonged  to  Booth.  The  coat  and  all  its  con 
tents  were  disposed  of  by  the  prosecution  itself. 
McPhail  swears  Atzerodt  told  him  the  coat  and 
arms  all  belonged  to  Herold.  The  clerk  ;:t  the 
Kirkwood  swears  somebody  called  for  A-tzcrodt 
in  the  afternoon.  It  was  Herold  who  visited 
Atzerodt,  and  left  the  coat  in  his  room.  One 
handkerchief  is  marked  with  the  name  of  Mary 
E.  Naylor,  the  sister  of  Herold.  Another  is 
marked  "H,"  the  initial  of  Herold.  But  why 
did  Atzerodt  suffer  this  coat  and  arms  to  be  in 
his  room?  Because  he  was  in  a  plot  to  capture 
the  President.  In  so  far  he  was  the  colleague 
of  Herold  and  Booth.  No  farther.  Because, 
for  this  purpose,  to  capture  the  President,  and 
to  be  used  in  defense,  he  carried  the  knife  and 
pistol  which  McAllister  used  to  keep  for  him — 
the  same  knife  he  threw  away  and  the  same 
pistol  he  pawned — and,  therefore,  he  suffered 
Herold  to  leave  his  armor  for  the  same  reason 
he  carried  his  own.  But  why  did  Atzerodt.  go 
away  with  the  key  sind  never  come  back?  Be 
cause  he  did  not  want  to  be  arrested.  Because 
he  was  not  guilty  of  aiding  in  the  assassina 
tion  of  Mr.  Lincoln.  Because  he  was  in  the 
plot  so  far  as  to  capture  the  President,  and 
when  he  was  ordered  to  kill  the  Vice-President 
and  refused,  he  was  unable  to  resolve  either  to 
inform  the  authorities,  for  fear  of  Booth,  or  to 
do  the  deed  for  fear  of  being  hung;  and  so  he 
just  abandoned  the  room  as  he  abandoned  eve 
rything  else  connected  with  the  conspiracy. 


and,  if  he  can   not  win  by  argument,  he  takes  j  Had  he  been  able  to  resolve  to  carry  out  his  al- 
the  witness-box  and  swears  them  through.    Mr. 
Henry  Burden,  an  old,  wealthy  and  honorable 


gentleman,   swears  he   would  not  believe  him 


lotted  duty,  he  would  naturally  have  taken  the 
coat  of  Herold  and  put  it  on,  and  used  the 
arms.  Had  he  been  able  to  resolve  to  fiy  at 


under  oath,  and  that  his  reputation  for  veracity  I  once,  he  would  have  removed  all  traces  of  his 
is  very  bad.     Justice  Abraham  B.  Olin,  of  the  [  participation.     One  reason  of  leaving  without 


Supreme  Court  of  this  District,  formerly  mem 
ber  of  Congress  from  Troy,  swears  he  has  never 
had  any  difference  with  Norton,  but  his  reputa 
tion  for  veracity  is  sufficiently  bad,  and  he 
would  not  believe  him  under  oath.  It  is  true 
they  have  brought  here  three  witnesses  to 
bolster  up  this  false  character.  One  never 
knew  him  at  all  at  Troy.  The  other  knew  him 
at  Troy,  but  is  a  client  who  has  the  very  case 
pending  in  which  Norton's  testimony  was  at 
tempted  to  be  impeached.  It  is  not  likely, 
then,  that  he  would  swear  away  the  character 
of  his  own  witness.  The  third,  Horatio  King, 
knew  him  only  in  business  relations  at  Wash 
ington  city. 

The  internal  evidence  of  Norton's  testimony, 
its  falsity  in  the  matter  of  Dr.  Mudd,  its  proven 
falsity  in  the  time  of  Atzerodt' s  visit  to  the  Na 
tional,  arid  his  known  reputation  as  a  false 
witness,  leaves  no  shadow  of  doubt  that  his  tes 
timony  is  the  offspring  of  a  desire  to  distinguish 
himself  on  the  witness-stand,  and  that  Atzerodt 
never  met  Booth  at  the  National  on  the  3d  of 
March,  nor  had  the  alleged  conversation  with 


paying  was  because  it  appears  he  had  no 
money,  and  the  reason  for  leaving  the  coat  was 
because  it  did  not  belong  to  him,  and  he  had  no 
reason  to  conceal  what  could  not  implicate  him. 
But  the  main  reason,  we  must  admit,  was  that 
he  was  between  two  fires,  which  brought  out 
his  native  irresolution,  and  so  he  cut  the  Gor- 
dian  knot  by  running  away.  We  shall  see 
that  he  left  the  Kimmell  House,  without  paying 
his  bill,  the  next  morning.  It  was  for  the  same 
reason — he  had  no  money  until  after  he  had 
pawned  his  pistol  at  Georgetown. 

The  fourth  point  of  the  prosecution  is  that 
Atzerodt  lodged  in  the  same  house  with  the 
Vice-President,  and  the  relative  situation  of 
the  rooms  was  favorable  to  assassination.  Prob 
ably  five  hundred  people  roomed  at  the  Kirk- 
wood  the  same  night,  and  had  rooms  which 
enabled  the  owners  to  command  the  room  occu 
pied  by  the  Vice-President.  The  Vice-Presi 
dent's  room  is  the  first  on  the  right-hand  side, 
after  reaching  the  landing  of  the  second  floor. 
It  is  a  room  which  nobody  can  help  passing, 
either  going  down  or  coming  up.  It  ia  impossi- 


ARGUMENT   OF   W.    E.    DOSTER. 


303 


ble  to  get  a  room  lower  than  that  in  the  house. 
That  Atzerodt,  therefore,  might,  in  passing, 
have  entered  it,  is  saying  that  everybody  in 
the  house  might  have  done  the  same.  But  this 
room,  No.  12(5,  is  about  as  remote  from  Mr. 
Johnson's  as  possible.  It  is  in  a  different 
wing,  and  removed  by  many  perplexing  turns 
and  four  nights  of  stairs.  It  is  very  evident, 
at  a  moment's  inspection,  that  any  one  desirous 
of  lying  in  wait  for  the  Vice-President  could 
not  well  have  missed  his  purpose  farther,  and 
that  with  that  intent  he  would  have  sought,  at 
least,  a  room  on  the  same  floor.  But  the  actual 
fact  is  better  than  suppositions.  Mr.  Browning 
tells  us  that  the  Vice-President  was  in  his 
room  from  five  in  the  evening  to  ten  at  night, 
and  that,  there  were,  therefore,  six  hours  in 
which  the  deed  could  have  been  done.  In  all 
that  time  we  have  no  evidence  that  Atzerodt 
was  at  the  Kirkwood  House,  except  the  state 
ment  of  Fletcher,  the  hostler  at  Nay  lor' s  sta 
bles,  who  says  he  followed  Atzerodt,  and  saw 
him  dismount  at  the  Kirkwood,  stay  five  min 
utes,  and  come  out  again.  What  was  he  doing 
there?  He  was  taking  a  drink  at  the  bar.  It 
is  impossible  to  show  this.  The  barkeeper  does 
uot  remember  the  faces  of  all  who  take  a  drink. 
If  he  was  lying  in  wait,  why  did  it  take  him 
but  five  minutes?  But  if  he  tried  to  kill  Mr. 
Johnson,  if  he  tried  to  get  into  his  room,  why 
is  it  not  shown  in  evidence?  If  he  was  in  any 
way  prevented  from  getting  into  his  room,  why 
was  it  not  shown  in  evidence?  Governor  Far- 
well,  who  went  first  to  the  Vice-President's 
room  after  the  assassination,  saw  no  one  lying 
in  wait;  he  was  not  told  by  the  President  there 
had  been  anybody  lying  in  wait ;  the  lock  had 
not  been  tampered  with;  no  attempt  whatever 
was  made;  the  Vice-President  was  in  his  room 
six  hours,  but  at  the  very  time  when  the  Presi 
dent  was  shot  he  was  left  undisturbed,  even  by 
a  knock,  in  his  room.  And  why?  Because 
Atzerodt  refused  to  go  and  kill  him.  Because 
Atzerodt,  during  the  evening,  kept  up  appear 
ances,  but  backed  out.  Because  the  instrument 
which  was  to  have  assassinated  the  Vice-Pres 
ident  was  either  too  conscientious  or  afraid  to 
do  it.  During  the  whole  half  hour  following 
no  one  attempted  to  kill  him,  no  one  was  seen 
lying  in  wait.  Why?  Because  there  had  been 
and  there  was  no  one  lying  in  wait.  He  who 
was  to  do  it  was  somewhere  else,  getting  drunk. 
A  fifth  point  alleged  in  corroboration  of  his 
guilt  is,  that,  on  his  arrest  by  Sergeant  Gem- 
mill,  he  gave  a  false  name,  denied  having  left 
Washington  recently,  and  said  he  had  nothing 
to  do  with  the  assassination.  In  the  last  state 
ment  he  but  told  the  truth.  Assassination  and 
murder  were  things  for  which  he  was  not  by 
nature  intended,  and  he  had  nothing  to  do  with 
it.  As  for  giving  a  false  name,  it  appears  the 
Sergeant  understood  his  name  to  be  Atwood, 
and  had  been  ordered  to  arrest  Atwood,  and 
finally  says  he  did  not  really  understand  the 
name,  it  was  in  German.  Certainly  he  might 
say  he  had  not  left  Washington  recently.  He 
knew  that  he  had  been  in  a  plot  to  capture  the 
President,  and  he  knew  that  he  had  been  a  col 
league  of  the  President's  murderer  in  another 
scheme,  and,  of  course,  he  was  afraid  to  confess  I 


his  part  then  and  there.  Any  presumption  of 
guilt  that  might  arise  from  these  circumstances 
is  negatived  by  Richter,  his  cousin,  at  whose 
house  he  was  staying.  He  tells  us  that  he 
worked  in  the  garden;  saw  the  neighbors;  made 
no  attempt  to  escape,  nor  was  he  in  an  unusual 
frame  of  mind.  He  was,  doubtless,  in  that 
frame  of  mind  when  one,  who  had  been  on  the 
verge  of  being  dragged  into  murder  for  gold, 
had  fled  from  the  temptation  and  been  saved — 
a  happy  arid  a  tranquil  mood.  Finally,  that  he 
stated  to  Metz,  "Gen.  Grant  would  have  been 
killed,  if  the  man  had  followed  that  was  to  have 
followed  him,"  is  denied  by  the  two  brothers, 
Leaman,  who  state  he  said:  "That  Grant,  if  he 
was  killed,  must  have  been  killed  by  somebody 
that  got  into  the  same  car" — an  innocent  and 
most,  truthful  proposition;  and  any  remarks  he 
made  at  that  time  about  his  "Having  more 
trouble  than  he  would  ever  get  rid  of,"  even 
supposing  the  words  had  not  reference  to  the 
love  matters  which  immediately  preceded  it, 
are  by  no  means  so  much  a  sign  of  guilt  as  the 
honest  expression  of  fear,  lest  one  who  has 
been  a  colleague  in  a  lesser  crime  may  get  into 
difficulty  about  a  greater,  of  which  he  was  in 
nocent. 

The  sixth  point  is,  that  Atzerodt  said  to 
Fletcher,  on  the  evening  of  the  14th,  after  10: 
"If  this  thing  happens  to-night  you  will  hear 
of  a  present;"  and  also  in  reference  to  the 
mare:  "She  is  good  on  a  retreat;"  and  that  the 
Sunday  before  he  said  to  Lieut.  Keim,  at  the 
Kimrnell  House,  after  finding  his  knife:  "If 
one  fails,  I  shall  want  the  other."  On  the  first 
occasion  both  parties  had  been  drinking,  and 
Fletcher  says  he  thought  Atzerodt  half  drunk, 
while  the  other  remark  was  made  after  each 
party  had  taken  three  cocktails.  So  that,  even 
if  we  credit  the  drunken  memories  of  the  wit 
nesses,  we  can  not  do  more  than  ascribe  it  to 
pot  valor,  pointing  to  the  possible  desperate 
melee  of  an  attempt  to  capture. 

All  the  evidence  to  prove  that  the  prisoner 
was  lying  in  wait  to  assassinate  Mr.  Johnson 
may  be  summed  up  thus:  On  the  same  evening 
that  the  President  was  assassinated  he  had  a 
room  at  the  same  hotel  as  the  Vice-President, 
in  which  were  found  arms  and  the  name  of  the 
President's  murderer.  He  was  before  seen  with 
the  murderer,  and  used  expressions  indicating 
expectation  of  gold  arid  the  use  of  his  arms, 
and  afterward  he  fled  the  city,  and  said  he  had 
trouble  on  his  mind.  These  circumstances  are 
nothing  by  themselves.  Any  friend  of  Booth's 
might  have  carried  arms,  stayed  at  the  Kirk 
wood,  had  Booth's  coat  in  his  room,  said  he  ex 
pected  to  be  rich,  and  afterward  said  he  had 
troubles.  These  things  might  have  naturally 
happened  to  John  Ford,  the  manager  of  the 
theater;  to  Junius  Brutus  Booth;  to  any  other 
friend  of  Booth's,  innocent  of  the  plot  as  the 
babe  unborn.  These  circumstances  are  only 
important  if  it  is  proved  that  the  person  who 
is  involved  in  them  either  tried  to  murder 
Mr.  Johnson  or  was  prevented.  That  proven, 
the  arms  are  the  tools  of  murder,  the  coat  the 
coat  of  an  accomplice,  the  talk  of  gold  an  ex 
pression  of  intention,  the  talk  of  trouble  a  con 
fession  of  guilt.  But  if  it  is  not  shown  that  an 


304 


THE    CONSPIRACY   TRIAL. 


attempt  Avas  made  to  murder,  or  that  it  was  im 
possible  to  attempt  murder ;  and  if,  on  the  con 
trary,  it  is  shown  that  there  was  every 
opportunity  for  murder,  and  nothing  in  the 
world  to  prevent  it,  then  these  circumstances 
lose  all  their  force,  and  we  are  bound  to  be 
lieve  that  where  there  was  every  opportunity 
and  no  attempt,  there  was  no  intention  and  no 
lying  in  wait. 

Adopting  the  theory 
to  murder,  and  lying  in  wait  to  murder, 
we  are  met  at  every  step  with  denials.  Thus, 
if  he  was  lying  in  wait,  why  did  he  not 
stay  at  the  Kirkwood  House  during  the  even 
ing?  Why  did  nobody  see  him  lie  in  wait? 
Why  did  he  come  out  of  the  Kirkwood  at  about 
ten  minutes  after  ten  without  having  tried  to 


that  Adzerodt  intended 


heart,  the  pigeon-liver  asserted  itself,  the 
prince  was  gone,  and  the  habits  of  the  tavern- 
brawler  re-appeared.  Nor  was  ho  a  natural 
boaster.  He  was  simply  the  Curius  of  the  con 
spiracy,  who  could  neither  keep  his  own  secrets 
nor  those  of  others;  who  was  big  with  the  por 
tentous  future,  although  he  knew  not  what  it 
was  ;  who  exchanged  his  wrath  for  a  sudden 
prudence;  and  so  as  he  imitated  his  prototype, 
"Repente  glorians  inaria  montesque  policeri  coepit,' 
so  he  afterward  imitated  him  by  pointing  out 
Booth,  and  informing,  under  the  promise  of 
mercy,  upon  his  fellows.  There  is,  then,  no 
evidence  whatever  that  he  was  "lying  in  wait 
to  kill  Mr.  Johnson,  with  the  intent,  unlawfully 
and  maliciously,  to  kill  and  murder  him.;I 
There  is  only  one  other  clause  of  the  specifica- 


attack  the  Vice-President?  Why  did  he  not  tion  that  deserves  notice — the  allegation  that 
enter  the  room?  Why,  at  10:20,  was  he  drink-  the  lying  in  wait  was  "about  the  same  hour  of 
ing  at  the  Kimmell  House?  Why,  in  short,  was  the  night,"  viz.:  Ten  o'clock  and  fifteen  min- 


hc  riding  about  town  instead  of  waiting  outside 
the  Vice-President's  room?  There  is  only  one 
theory  that  will  make  everything  agree:  At- 
zerodt  backed  out.  He  would  have  liked  the 
money  for  capturing,  but  he  did  not  like  to  be 
hung  for  murder.  He  never  heard  of  murder 
before  that  evening  at  eight,  or  he  would  long 
before  have  hid  himself.  When  he  did  hear  it 
he  had  firmness  enough  to  object.  Coward  con 
science  came  to  his  rescue.  But  Booth  threat 
ened  to  kill,  and  he  knew  well  enough  he  was  the 
man  to  close  the  mouth  of  any  one  who  troubled 
him.  So  he  went  off,  driven  like  a  poor  frail 
being  between  irresolution  and  fear;  took 
drinks,  feigned  to  be  doing  his  part,  talked 
valiantly  while  the  rum  was  in  his  throat, 
promised  gloriously,  galloped  around  fiercely, 
looked  daggers,  and  when  the  hour  struck  did 
nothing  and  ran  away.  This,  gentlemen,  is  the 
history  in  a  small  compass — venit,  videt,  fugit. 
He  tried  to  become  a  hero,  but  he  was  only  a 
coachinaker. 

Look  at  the  face  of  this  impossible  Brutus, 
and  see  whether  you  can  see  therein  that 
he  is — 

'*  For  dignity  composed  and  high  exploits." 

Why,  gentlemen,  this  hero,  who,  under  the 
influence  of  cocktail  courage,  would  capture 
Presidents  and  change  the  destinies  of  empires, 
is  the  same  fleet-footed  Quaker,  famous  in  Port 
Tobacco  for  jumping  out  of  windows  in  bar 
room  fights  ;  an  excellent  leader — of  a  panic, 
this  son  of  arms  who  buries  his  knife  in  a  gut 
ter  and  revolves  his  revolvers  into  a  greenback. 
Well  might  it  have  been  said  to  Booth  : 

"  0,  Cassius,  you  are  yoked  to  ft  lamb 
That  carries  anger  as  the  flint  bears  fire ; 
"Who  much  enforced  shows  a  hasty  spark, 
And  straight  is  cold  again." 

He  has  the  courage  of  vanity  and  of  folly. 
As  long  as  he  could  be  seen  on  intimate  terms 


utes,  on  the  evening  of  the  14th  of  April.  Let, 
us  sec,  again,  where  the  prisoner  was  at  this 
time,  10:15.  Fletcher  says  he  came  to  Naylor's 
stable  at  ten.  He  then  asked  him  whether  he 
would  have  a  drink.  Fletcher  said  yes.  They 
went  down  to  Thirteen-and-a-half  and  E  street, 
to  the  Union  Hotel,  and  took  a  drink  apiece ; 
went  back  to  the  stable,  and  had  some  conver 
sation  about  the  mare.  Meanwhile  the  boy  had 
got,  the  wrong  horse,  and  had  to  go  back  and 
get  the  mare.  Then  they  had  some  conversa 
tion  about  Herold.  Then  he  rode  down  E,  past 
Thirteen-and-a-half  street,  and  finally  came  to 
the  Kirkwood  House.  Fletcher  says  thathe  rode 
so  slowly  that  he  kept  up  with  him.  Now,  believ 
ing  what  is  improbable,  that  Fletcher  did  keep 
up  with  a  man  on  horseback  for  three  squares 
to  the  corner  of  Thirteen- 
strcets  is  one  square,  to 
Twelfth  and  E  two  squares,  and  to  Twelfth  and 
Pennsylvania  avenue  three  squares),  we  are 
further  obliged  to  believe  that,  in  fifteen  min 
utes,  Atzerodt  ordered  a  horse,  walked  two 
squares,  waited  for  two  drinks,  paid  for  them, 
held  two  conversations,  mounted,  dismounted, 
had  a  horse  changed,  and,  afterward,  rode  three 
squares  so  slowly  that  a  hostler  could  follow 
him.  It  is  not  possible.  At  10:15  Atzerodt 
was  either  not  yet  at  the  Kirkwood  House,  or 
else  Mr.  Fletcher  made  a  mistake  in  his  time. 
His  course  after  this  was  as  follows  :  Fletcher 
says  he  rode  up  D  in  the  direction  of  Tenth  ; 
yet  at'  this  very  time,  about  ten,  McAllister 


(for  from   Naylor's 
and-a-half    and    E 


says  he   came   with  his 


to   the  Kimmell 


House,  '-rode  up  to  the  door,  and  called  the 
black  boy  out  to  hold  his  horse."  Now,  the 
Kimmell  is  on  C  street,  near  Four-and-a-half, 
and,  of  course,  when  he  rode  down  D  he  went 
to  the  Kimmell. 

Thus  we  now  know  what  he  was  doing  at  the 
time  Payne  was  at  Mr.  Se  ward's,  and  at  the 
time  Booth  shot  the  President.  He  was  riding 
round  from  bar-room  to  bar-room;  and  it  is 


with  Booth  about  hotels,  it  did  his  soul  good  to  very  plain  he  was  now  in  liquor.  He  was  hall 
be  so  great  a  confederate;  and  as  long  as  he  I  tight  when  Fletcher  saw  him,  and  yet  took  an- 
could  see  a  bold  stroke  by  which  he  might  sud-  other  drink  with  him.  He  went  to  the  Kirk- 


denly  change  the  coachinaker  into  a  prince,  he 
was,  doubtless,  brave.  But  when  he  heard  of 
murder,  conceived  to  himself  his  going  into  the 
Vice-President's  room  and  stabbing  him  to  the 


wood  and  took  another  drink  ;  he  went  to  the 
Kimmell  and  took  another.  Certainly,  of  get 
ting  drunk,  of  riding  from  tavern  to  tavern,  of 
guzzling  like  a  Falstaff,  of  having  an  inex- 


ARGUMENT    OF    W.    E.    DOSTER. 


305 


tinguisliable  thirst — of  this  he  is  guilty ;  but 
of  lying  in  wait  for  the  President  at  10:15,  we 
are  paying  him  an  undeserved  compliment. 

There  is,  therefore,  no  part  of  the  specifica 
tion  proven,  but  the  immediate  contrary.  Dur 
ing  the  whole  of  that  evening,  as  far  as  the  evi 
dence  throws  any  light  on  his  conduct,  instead 
of  lying  in  wait  near  the  Vice-President  to 
murder  him,  he  was  standing  over  the  different 
bars,  from  the  Union  House  to  the  Kimmell, 
with  the  intent  then  and  there,  unlawfully  and 
maliciously,  to  make  Atzerodt  drunk.  Thus 
much  of  the  specification. 

There  is  one  suggestion  I  will  answer  before 
I  leave  the  specification.  Why,  if  he  was  so 
cowardly,  so  halting,  so  irresolute  a  character, 
did  Booth  employ  him?  Booth  employed  him 
for  an  emergency  which  he  was  perfectly  com 
petent  to  meet.  In  the  plot  of  the  capture,  the 
part  assigned  to  the  prisoner  was  to  furnish  the 
boat  to  carry  the  party  over  the  Potomac.  For 
this  his  experience  in  a  seaport  town  fitted  him. 
This  required  no  resolution  and  no  courage. 
For  participation  in  the  President's  assassina 
tion  he  could  never  have  been  intended.  Booth, 
as  these  men  all  agree,  as  his  own  conduct 
shows,  was  ambitious  to  carry  off  the  glory  of 
this  thing.  Payne  says  Booth  remarked,  he 
"  wanted  no  botching  with  the  President  and 
Gen.  Grant."  As  for  the  rest,  therefore,  of  the 
Cabinet,  he  probably  had  no  concern  ;  he  was 
far  more  interested  in  his  own  part  than  in 
others.  When  he,  therefore,  told  Atzerodt  to 
take  charge  of  the  Vice-President,  he  must  have 
known  that  the  prisoner  had  not  the  courage, 
and  therefore  did  not  care  particularly  whether 
he  accomplished  it  or  not,  only  so  he  himself 
could  attain  the  desired  immortal  infamy.  He 
wanted  Atzerodt  as  the  Charon,  the  ferryman 
of  the  capture,  and,  after  the  failure,  reserved 
him  for  greater  things,  the  duties  of  Orcus,  which 
he  was  incompetent  to  perform. 

The  charge  is  divisible  into  two  separate  and 
distinct  allegations.  First,  "  For  maliciously, 
unlawfully,  traitorously  and  in  aid  of  the  armed 
rebellion  against  the  United  States,  combining, 
confederating  and  conspiring  with  Booth,  Sur- 
ratt,  Davis,  etc.,  to  kill  and  murder  Abraham 
Lincoln,  General  Grant,  Andrew  Johnson  and 
William  H.  Seward,  on  or  before  the  6th  day  of 
March." 

The  substance  of  this  allegation  is,  that  as 
early  as  the  6th  of  March  there  was  a  project 
on  foot  to  kill  the  President  and  the  heads  of 
State ;  and,  to  involve  the  prisoner,  it  must  be 
shown  that  as  early  as  March  6th  he  was  ad 
vised  of  and  agreed  to  it.  Now,  what  evidence 
is  there  that  there  was  a  conspiracy  to  kill  the 
President  as  early  as  March  the  6th?  Chester, 
the  actor,  says  he  knew  of  a  plot  to  capture  in 
the  latter  end  of  February.  Weichmann,  the 
chief  witness  for  the  prosecution,  states  that  as 
late  as  the  middle  of  March — about  the  16th  or 
18th,  he  thinks — about  three  weeks  before  the 
assassination,  John  Surratt,  Booth,  Atzerodt 
and  Payne,  took  a  ride  into  the  country,  armed, 
and  returned.  What  does  this  show,  but  that 
two  weeks  after  the  6th  of  March  it  was  the 
intention  of  Booth  to  capture  the  President  at 
the  Soldiers'  Home,  and  abduct  him  ?  Before 

20 


and  during  the  early  part  of  March,  Atzerodt 
was  at  Brawner's  Hotel,  at  Port  Tobacco,  and 
could  have  known  nothing  of  it,  even  had  the 
plot  existed.  As  late  as  the  18th  of  March,  as 
was  shown  in  the  cases  of  O'Laughlin  and  Ar 
nold,  there  was  a  project  to  capture,  from  which 
they  backed  out.  As  late  as  the  18th  of  March 
Booth  admits  the  sale  of  horses,  the  detection 
of  parties,  and  fixes  the  time  of  the  abandon 
ment  of  the  scheme.  Payne  said  he  never  knew 
of  any  plot  to  assassinate  until  the  evening  of 
the  14th,  at  eight  o'clock,  at  a  meeting  held  at 
the  Herndon  House,  while  Atzerodt  confirms  it 
in  all  his  confession,  that  the  evening  of  the 
14th  day  of  April  was  the  first  time  he  ever 
heard  of  a  plot  to  kill  the  heads  of  State.  The 
only  evidence  against  this  is  the  testimony  of 
Norton,  who  declares  that  on  the  3d  of  March, 
Booth  and  Atzerodt  spoke  as  follows:  "If  the 
matter  succeeded  as  well  with  Johnson  as  it  did 
with  old  Buchanan,  the  party  would  be  terribly 
sold  ;"  from  which  it  might  be  inferred  that  on 
that  date  assassination  was  broached  to  Atze 
rodt.  Fortunately  we  know  that  this  Norton  is 
an  egregious  falsifier,  as  it  was  shown  that  nei 
ther  Atzerodt  nor  Dr.  Mudd  was  in  Washington 
that  day,  and  he  himself  is  proved  not  worthy 
of  being  believed  on  oath. 

The  prisoner,  therefore,  can  not  be  found 
guilty  of  the  first  member  of  the  charge. 

The  second  member  of  the  charge  is,  in  sub 
stance,  as  follows:  "For,  on  the  14th  of  April, 
A.  D.  1865,  with  John  Wilkes  Booth  and  John 
Surratt,  maliciously,  unlawfully  and  traitor 
ously  assaulting,  with  intent  to  kill  and  murder, 
William  H.  Seward,  and  tying  in  wait  to  kill  and 
murder  Vice-President  Johnson  and  Gen.  Grant." 

This  charges  Atzerodt  with  being  an  accom 
plice  of  Payne  in  the  assault  on  Mr.  Seward,  and 
an  accomplice  of  whoever  was  lying  in  wait  for 
Gen.  Grant  and  Vice-President  Johnson.  Now, 
it  was  proved  beyond  a  shadow  of  doubt,  under 
the  specification,  that  Atzerodt  himself  was  not 
lying  in  wait  for  President  Johnson,  nor  was 
anybody  else  shown  to  be  lying  in  wait  for 
him.  Atzerodt  is,  therefore,  neither  principal 
nor  accessory  to  the  lying  in  wait  for  Vice- 
President  Johnson.  But  was  he  not  an  accom 
plice  or  accessory  to  Payne's  assault  of  Mr. 
Seward,  or  to  Booth's  killing  of  the  President? 
If  so,  he  must  have  been  accessory  either  be 
fore  the  fact  or  after  the  fact.  An  accessory 
before  the  fact,  is  "one  who,  being  at  the  time 
of  the  crime  committed,  doth  yet  procure,  coun 
sel  or  command  another  to  commit  a  crime." 
Now,  was  Atzerodt  the  one  who  procured,  coun 
seled  or  commanded  either  Booth  or  Payne  ? 
Certainly  not.  The  position  Atzerodt  held  was 
one  of  subordinate;  he  was  the  procured,  the 
counseled,  the  commanded,  as  far  as  we  can 
judge  of  the  different  characters,  as  far  as  we 
know  that  Booth  was  the  ringleader;  as  far  as 
we  know  that  in  all  the  dealings  Atzerodt  was 
the  slave,  and  Payne  and  Booth  the  masters. 

Was  Atzerodt,  then,  accessory  after  the  fact? 
There  is  greater  plausibility  of  this,  but  no 
evidence.  "An  accessory  after  the  fact  may  be 
where  a  person,  knowing  a  felony  to  have  been 
committed,  receives,  relieves,  comforts  or  as 
sists  the  felon."  Did  Atzerodt  in  any  way  help 


306 


THE    CONSPIRACY    TRIAL. 


Booth  or  Payne  after  the  felony  was  committed  ? 
No  ;  he  never  saw  either  of  them  after  the  meet 
ing  at  eight  o  clock  until  he  met  Payne  on  the 
monitor.  Instead  of  assisting  them,  he  kept 
getting  drunk  ;  instead  of  helping  them  across 
the  river,  the  sergeant  says  only  two  passed  the 
bridge,  viz.:  Booth  and  Herold ;  instead  of 
showing  by  his  horse  he  had  assisted,  his  horse 
came  back  Justin  the  same  condition  as  it  went 
jiway,  and  that  at  eleven  o'clock;  instead  of 
comforting  or  relieving  them  across  the  river, 
he  went  to  Washington  Briscoc,  and  finally  to 
bed  at  the  Kimmell  House,  instead  of  receiving; 
he  first  told  McPhail  and  Wells  Booth  had  gone 
in  the  direction  of  Bryantown,  and  confessed 
the  whole  affair,  and  had  them  all  arrested.  The 
assistance  he  has  rendered  the  assault  and  mur 
der  is  such  neither  of  the  principals  has  any 
occasion  for  gratitude;  and,  therefore,  he  can 
not  be  found  guilty  of  being  an  accessory  after 
the  fact,  neither  helping  Booth  nor  Payne.  But 
the  prosecution  have  laid  great  stress  on  a  big 
bay  horse,  with  large  feet,  and  blind  in  one  eye. 
They  show  that  such  a  horse  was  found  sad 
dled  (near  Camp  Barry),  and  without  a  rider, 
at  twelve  o'clock  on  the  night  of  the  assassi 
nation.  They  show  that  this  horse  was  brought 
to  Naylor's  stable  by  Atzerodt  and  another 
man  on  the  3d  of  April,  to  be  sold  and  kept 
there  until  the  12th  of  April;  that  on  the  14th, 
Atzerodt  came  to  the  stable  again  and  said  he 
had  sold  the  horse  in  Montgomery  county;  that 
Fletcher,  the  hostler,  swears  the  horse,  saddle 
and  bridle  Atzerodt  said  he  sold,  are  the 
same  found  near  Camp  Barry.  Well,  what, 
if  this  testimony  be  true,  is  the  conclusion? 
One  conclusion  is,  that  Atzerodt  told  a  lie ; 
for  how,  if  he  sold  this  horse  in  Montgom 
ery  county  on  the  12th,  comes  he  to  Camp  Barry 
on  the  14th?  Well,  let  us  concede  that  Atze 
rodt  lied.  We  are  not  trying  him  for  his  ve 
racity.  He  is  not  bound  to  tell  every  hostler 
how  he  disposes  of  his  horses.  But  the  second 
conclusion  the  prosecution  draws  is,  that 
Payne  rode  this  horse,  and  that  Atzerodt  fur 
nished  him  the  horse.  Let  us  examine  what 
ground  there  is  for  the  conclusion.  According 
to  Fletcher,  the  horse  when  brought  to  Naylor's 
in  April  did  not  belong  to  Atzerodt.  He  be 
longed  to  the  gentleman  with  him,  who  "left 
him  in  Atzerodt's  care  to  sell."  He  was,  there 
fore,  factor  of  the  gentleman  in  the  horse  bus 
iness,  and  took  the  horse  away  on  the  12th. 
The  negro  who  saw  the  horse  Payne  rode,  says 
he  was  a  "big  bay,  very  stout."  But  was  this 
horse  not  belonging  to  some  one  else  ?  Was  the 
horse  found  at  Camp  Barry  ever  ridden  by 
Payne?  The  truth  of  the  whole  matter  is  this: 
The  horse  brought  to  Naylor's  was  bought  by 
Boothof  Mr.  Gardiner,  living  in  Prince  George's 
county,  in  the  latter  part  of  last  November, 
according  to  the  evidence  of  Thomas  Gardiner. 
On  April  3d,  Atzerodt  went  to  Naylor's  with 
Booth,  and  was  ordered  to  sell  him  there.  The 
saddle  and  all  belonged  to  Booth.  It  was  the 
same  big  bay  which  Atzerodt,  on  the  12th,  tried 
to  sell  to  Matthew  Pope,  at  the  Navy  Yard,  for 
Booth.  On  the  12th,  Atzerodt,  not  succeeding 
in  selling  him,  returned  him  to  Booth,  and  that 
is  the  last  connection  that  Atzerodt  ever  had 


with  the  horse.  lie  tried  to  sell,  and  could  not, 
and  so  gave  him  back  to  Booth.  Here  ends  the 
brokerage  and  the  responsibility  of  Atzerodt, 
Whether  Booth  ever  gave  this  horse  to  Payne, 
and  where  he  kept  him  until  that  evening,  are 
questions  that  Payne  alone  can  answer.  It  is 
probable  that  this  horse  was  kept  for  two  days 
in  the  stable  in  the  rear  of  Ford's,  and  on  that 
night  given  to  Payne.  But  there  is  no  evi 
dence  that  Atzerodt  gave  Payne  a  horse  over 
which  he  had  ceased  to  have  control,  and  which 
belonged  to  Booth.  On  the  contrary,  it  is 
shown  that  Atzerodt  was  never  seen  in  com 
pany  with  that  horse  after  the  12th,  and  never 
claimed  to  be  the  owner.  Any  inference  of 
complicity,  therefore,  drawn  from  this  horse  is 
turning  horse-brokera.ge  into  murder.  The 
prisoner,  then,  being  neither  guilty  as  accessory 
before  nor  after  the  fact,  neither  counseling  nor 
aiding  Payne  and  Booth  before,  nor  assisting 
and  receiving  Payne  and  Booth  after  the  fact, 
can  not  be  found  guilty  of  any  branch  of  the 
charge. 

What  is,  then,  the  plain,  unvarnished  truth 
of  Atzerodt's  part  in  this  conspiracy  ?  I  will 
briefly  relate  it.  During  the  latter  part  of  Feb 
ruary,  John  Surratt  and  Booth  wanted  a  man 
who  understood  boating,  and  could  both  get  a 
boat  and  ferry  a  party  over  the  Potomac  on  a 
capture.  Surratt  knew  Atzerodt,  and  under 
the  influence  of  great  promises  of  a  fortune, 
the  prisoner  consented  to  furnish  the  boat,  arid 
do  the  ferrying  over.  The  plot  was  attempted 
the  18th  of  March,  and  failed.  Booth,  how 
ever,  kept  his  subordinates  uninformed  of  his 
plans,  except  it  was  understood  that  the  President 
was  to  be  captured.  Meanwhile,  everybody 
was  waiting  for  Booth.  On  the  18th  of  March 
Atzerodt  went  to  the  Kimmell  House.  On  the 
1st  of  April  he  talked  of  future  wealth.  On 
the  6th  he  spoke  to  Lieut.  Keim,  over  their  liquor, 
of  "  using  one,  if  the  other  failed."  On  the 
12th  he  stayed  at  the  Kirk  wood,  and  tried  to 
sell  the  bay  horse  at  Pope's.  On  the  14th  Booth 
unfolded  his  plans  at  the  Herndon  House,  and 
Atzerodt  refused.  From  the  Herndon  House  he 
went  to  Oyster  Bay  and  took  drinks  till  ten. 
At  ten  lie  took  a  drink  writh  Fletcher  at  the 
Union  ;  at  ten  minutes  after  ten  he  took  a  drink 
at  the  Kirk  wood  ;  at  twenty  minutes  after  ten 
he  took  a  drink  at  the  Kimmell  House,  and  rode 
about  the  city.  At  eleven  he  returned  his  horse ; 
at  twelve  he  was  at  the  Navy  Yard  ;  at  two  he 
went  to  bed.  Next  morning  at  five  he  got  up 
and  went  to  Georgetown,  pawned  his  pistol,  and 
went  to  Mr.  Metz' .  On  the  IGth  (Sunday)  he 
took  dinner  at  Metz'.  On  Sunday  evening  he 
went  to  Hartmau  Richter's.  On  the  19th  he 
was  arrested.  Thus  ends  this  history,  which, 
under  a  greater  hand,  might  have  become  a 
tragedy,  but  with  the  prisoner  has  turned  into 
a  farce. 

Before  I  close,  it  is  my  duty  to  submit  some 
reflections  as  to  the  nature  of  the  crime  and 
the  nature  of  the  penalty,  in  case  you  should 
find  him  guilty,  which  I  hold  can  not  be  done 
under  the  evidence.  This  man  is  principal  in 
an  attempt  to  abduct  the  President  of  the 
United  States.  He  has  assaulted  no  one ;  h- 
has  sheltered  no  one  that  did  assault.  He  has 


AIWUMENT   OF   W.    E.   DOSTER. 


killed  no  one,  nor  has  he  sheltered  anyone  that 
did  kill.  You  can,  therefore,  only  find  him 
guilty  of  a  crime  for  which  he  is  not  on  trial. 
If  it  be  argued,  that  although  the  prisoner  ran 
away,  he  intended  to  kill  Mr.  Johnson,  the  an 
swer  is,  intention  can  only  be  inferred  from 
acts.  "  It  is  a  universal  rule  that  a  man  shall 
be  taken  to  intend  that,  which  he  does/'  Hale, 
P.  (7.,  229.  And  the  converse  of  this  is  true, 
that  a  man  shall  not  be  taken  to  intend  what 
he  does  not  do.  Exteriora  acta  indicunt  animis 
secreta.  8  Co.,  146.  And,  therefore,  as  we  know 
he  ran  away  we  are  bound  to  infer  that  he 
had  no  intention  of  murder.  If  it  be  argued 
that,  although  neither  guilty  as  accessory  in 
felony  nor  principal  in  treason,  he  is  yet 
guilty  of  the  conspiring,  which  is  the  essence  of 
the  offense,  the  answer  is,  the  conspiracy  in 
which  he  was  engaged  is  not  the  conspiracy 
for  which  he  is  on  trial;  and  that  as  soon  as 
he  knew  of  the  latter  he  hastened  to  dissolve 
all  connection  with  the  conspirators. 

As  for  the  punishment,  supposing  he  could  be 
found  guilty  of  either  the  charge  or  the  speci 
fication,  the  offense,  in  either  case  would  only 
be  technical,  and  have  damaged  no  one  ;  and 
even  supposing  he  were  proven  guilty  of  the 
charge  and  specification,  he  has  already  turned 
states-evidence  to  the  Provost  Marshal,  and 
therefore  his  punishment  would  fall  under  the 
practice  usual  in  the  courts  of  justice,  that  one 
who  confesses  has  an  equitable  right  to  the  len 
iency  of  the  court.  His  case,  however,  rests 
on  no  such  slender  ground.  Instead  of  con 
spiring  to  kill,  he  refused  to  kill ;  and  instead 
of  lying  in  wait  to  murder,  he  intoxicated  him 
self  at  the  appointed  hour,  and  next  morning 
ran  away.  He  is  guilty  solely  of  what  he  con 
fesses — of  conspiring  to  abduct  the  President — 
and  of  that  can  be  found  guilty  only  under  a 
new  indictment. 

I  claim,  therefore,  at  your  hands  an  unqual 
ified  acquittal.  That  he  did  wrong  in  conspir 
ing  to  capture,  is  admitted.  That  he  should 
be  punished  for  it  whenever  tried  for  it,  is  also 
admitted.  But  that  he  is  innocent  of  both 
charge  and  specification,  as  now  laid,  is  so 
transparent,  that  his  acquittal  will,  I  trust,  be 
urged  by  the  Judge  Advocate  as  a  matter  of 
form,  if  it  were  not  also  a  matter  of  justice. 


STATEMENT   BY   GEORGE    A.    ATZERODT, 

Read  ty  his  counsel,   W.  E.  Doster,  Esq. 

The  prisoner,  Atzerodt,  submits  the  following 
statement  to  the  Court : 

I  am  one  of  a  party  who  agreed  to  capture 
the  President  of  the  United  States,  but  I  am 
not  one  of  a  party  to  kill  the  President  of  the 
United  States,  or  any  member  of  the  Cabinet, 
or  General  Grant,  or  Vice-President  Johnson. 
The  first  plot  to  capture  failed;  the  second — to 
kill — I  broke  away  from  the  moment  I  heard 
of  it. 

This  is  the  way  it  came  about:    On  the  even 


ing  of  the  14th  of  April  I  met  Booth  and  Payne 
at  the  Herndon  House,  in  this  city,  at  eight 
o'clock.  He  (Booth)  said  he  himself  should 
murder  Mr.  Lincoln  and  General  Grant,  Payne 
should  take  Mr.  Seward,  and  I  should  take  Mr. 
Johnson.  I  told  him  I  would  not  do  it ;  that  I 
had  gone  into  the  thing  to  capture,  but  I  was 
not  going  to  kill.  He  told  me  I  was  a  fool; 
that  I  would  be  hung  any  how,  and  that  it  was 
death  for  every  man  that  backed  out ;  and  so 
we  parted.  I  wandered  about  the  streets  until 
about  two  o'clock  in  the  morning,  and  then 
went  to  the  Kimmell  House,  and  from  there 
pawned  my  pistol  at  Georgetown,  and  went  to 
my  cousin's  house,  in  Montgomery  county, 
where  I  was  arrested  the  19th  following.  Af 
ter  I  was  arrested,  I  told  Provost  Marshal  Wells 
and  Provost  Marshal  McPhail  the  whole  story  ; 
also  told  it  to  Capt.  Monroe,  and  Col.  Wells  told 
me  if  I  pointed  out  the  way  Booth  had  gone  I 
would  be  reprieved,  and  so  I  told  him  I  thought 
he  had  gone  down  Charles  county  in  order  to 
cross  the  Potomac.  The  arms  which  were  found 
in  my  room  at  the  Kirkwood  House,  and  a  black 
coat,  do  not  belong  to  me ;  neither  were  they 
left  to  be  used  by  me.  On  the  afternoon  of  the 
14th  of  April,  Herold  called  to  see  me  and  left 
the  coat  there.  It  is  his  coat,  and  all  in  it  be 
longs  to  him,  as  you  can  see  by  the  handker 
chiefs,  marked  with  his  initial,  and  with  the 
name  of  his  sister,  Mrs.  Naylor.  Now  I  will 
state  how  I  passed  the  whole  of  the  evening  of 
the  14th  of  April.  In  the  afternoon,  at  about 
two  o'clock,  I  went  to  Keleher's  stable,  on 
Eighth  street,  'near  D,  and  hired  a  dark  bay 
mare  and  rode  into  the  country  for  pleasure, 
and  on  my  return  put  her  up  at  Naylor's  sta 
ble.  The  dark  bay  horse  which  I  had  kept  at 
Naylor's  before,  on  about  the  3d  of  April,  be 
longed  to  Booth  ;  also  the  saddle  and  bridle.  I 
do  not  know  what  became  of  him.  At  about 
six  in  the  evening,  I  went  to  Naylor's  again 
and  took  out  the  mare,  rode  out  for  an  hour, 
and  returned  her  to  Naylor's.  It  was  then 
nearly  eight,  and  I  told  him  to  keep  the  mare 
ready  at  ten  o'clock,  in  order  to  return  her  to 
the  man  I  hired  her  from.  From  there  I  went 
to  the  Herndon  House.  Booth  sent  a  messen 
ger  to  the  "  Oyster  Bay,"  and  I  went.  Booth 
wanted  me  to  murder  Mr.  Johnson.  I  refused. 
I  then  went  to  the  "  Oyster  Bay,"  on  the  Ave 
nue,  above  Twelfth  street,  and  whiled  away  the 
time  until  nearly  ten.  At  ten  I  got  the  mare, 
and  having  taken  a  drink  with  the  hostler,  gal 
loped  about  town,  and  went  to  the  Kimmell 
House.  From  there  I  rode  down  to  the  depot, 
and  returned  my  horse,  riding  up  Pennsylva 
nia  Avenue  to  Keleher's.  From  Keleher's,  I 
went  down  to  the  Navy  Yard  to  get  a  room 
with  Wash. Briscoe.  He  had  none,  and  by  the 
time  I  got  back  to  the  Kimmell  House  it  was 
nearly  two.  The  man  Thomas  was  a  stranger 
I  met  on  the  street.  Next  morning,  as  stated, 
I  went  to  my  cousin  Richter's,  in  Montgomery 
county.  GEORGE  A.  ATZERODT. 


IN 


DEFENSE  OF  LEWIS  PAYNE, 

BY 

W.    E.    DOSTEK,    ESQ. 


May  it  please  the   Court : 

I.  There  are  three  things  in  the  case  of  the 
prisoner,  Payne,  which  are  admitted  beyond 
cavil  or  dispute : 

1.  That  he  is  the  person  who  attempted  to  take 
the  life  of  the  Secretary  of  State. 

2.  That  he  is  not  within  the  medical  definition 
of  insanity, 

3.  That  he  believed  what   he  did  was  right 
and  justifiable. 

The  question  of  his  identity  and  the  question 
of  his  sanity  are,  therefore,  settled,  and  among 
the  things  of  the  past.  The  sole  question  that 
remains  is,  how  far  shall  his  convictions  serve 
to  mitigate  his  punishment?  I  use  the  word 
punishmentdeliberately,  and  with  the  conscious- 
uess  that  in  so  doing  I  admit  that  if  he  is  a  re 
sponsible  being  he  ought  to  be  punished.  And 
I  say  it,  because  I  can  not  allow  my  duties  as 
counsel  to  interfere  with  my  convictions  as  a 
man  so  far  as  to  make  me  blind  to  the  worth  of 
the  life  of  a  distinguished  citizen,  and  the  aw 
ful  consequences  of  an  attempt  to  take  it  away. 
If,  indeed,  such  an  attempt  be  allowed  to  go  with 
out  rebuke,  then  it  seems  to  me  the  office  is  but  a 
perilous  exposure  to  violence ;  then  the  highest 
compensation  for  public  services  is  the  distinc 
tion  which  follows  assassination',  and  then  our 
public  servants  are  but  pitiable  and  defenseless 
offerings  to  sedition.  And  surely,  if  any  public 
servant  deserved  to  be  excepted  from  that  fate, 
it  was  he,  the  illustrious  and  sagacious  states 
man,  who,  during  a  long  life  of  arduous  serv 
ices,  has  steadfastly  checked  all  manner  of  fac 
tious  and  public  discontent;  who,  in  the  darkest 
days  of  discord,  has  prophesied  the  triumph  of 
concord,  and  who  at  all  times  has  been  more 
ready  to  apply  antidotes  than  the  knife  to  the 
nation's  wounds.  How  far,  then,  shall  the  con 
viction  of  the  prisoner  that  he  was  doing  right 
go  in  extenuation  of  his  oifense  ?  That  we  may 
accurately,  and  as  fully  as  the  occasion  de 
mands,  understand  the  convictions  of  the  pris 
oner,  I  invite  your  attention  to  a  sketch  of  his  life, 
the  customs  under  which  he  was  reared,  and  the 
education  which  he  received.  Lewis  Thornton 
Powell  is  the  son  of  the  Rev.  Geo.  C.  Powell,  a  Bap 
tist  minister,  at  present  supposed  to  live  at  Live 
Oak  Station,  on  the  railroad  between  Jackson 
ville  and  Tallahassee,  in  the  State  of  Florida, 
and  was  born  in  Alabama  in  the  year  1845. 
Besides  himself,  his  father  had  six  daughters 
308 


and  two  sons.  He  lived  for  some  time  in  Worth 
and  Stewart  counties,  Georgia,  and  in  1859 
moved  to  Florida.  At  the  breaking  out  of  the 
war,  but  four  years  ago,  the  prisoner  was  a  lad 
of  sixteen,  engaged  in  superintending  his 
father's  plantation  and  a  number  of  slaves. 
We  may  safely  presume  that,  occupied  in  the 
innocent  pursuits  of  country  life,  he  daily  heard 
the  precepts  of  the  Gospel  from  his  father  ;  that, 
in  the  society  of  his  sisters,  the  hardy  life  of  a 
planter  was  softened  by  the  charms  of  a  refined 
and  religious  circle,  and  that,  in  the  natural 
course  of  events,  he  would  be  to-day,  as  he  was 
then,  a  farmer  and  an  honest  man.  But,  in 
1861,  war  broke  out — war,  the  scourge  and  pes 
tilence  of  the  race.  The  signal,  which  spread 
like  a  fire,  was  not  long  in  reaching  Live  Oak 
Station.  His  two  brothers  enlisted,  and  Lewis, 
though  but  sixteen,  enlisted  in  Capt.  Stuart's 
company,  in  the  Second  Florida  Infantry,  com 
manded  by  Col.  Ward,  and  was  ordered  to 
Richmond. 

Let  us  pause  a  moment  in  this  narrative,  and 
consider  what,  in  the  eyes  of  this  Florida  boy, 
was  the  meaning  of  war,  and  what  the  thoughts 
that  drove  him  from  a  pleasant  home  to  the  field 
of  arms.  At  another  time  I  might  picture  to  you 
the  scene,  but  too  familiar,  of  his  taking  leave; 
a  mother,  like  the  mothers  of  Northern  boys, 
shedding  tears,  less  bitter,  because  she  was 
dedicating  a  son  to  her  country  ;  sisters,  whose 
sorrow,  like  the  sorrow  of  the  sisters  of  Northern 
boys,  was  alleviated  with  pride  that  they  had  a 
brother  in  the  field ;  the  father's  blessing;  the 
knapsack  filled  with  tributes  of  affection,  to  be 
fondled  by  distant  bivouac  fires,  and  the  heavy 
sigh,  drowned  in  the  rolling  of  the  drum.  But  this 
is  not  a  stage  for  effect.  We  know  this  was 
mistaken  pride  and  sorrow  in  a  mistaken  cause, 
though  the  object  of  them  was  a  son  and  brother, 
and  we  must  not  consider  them,  though  the  boy 
was  but  sixteen  when  he  launched  on  the  terri 
ble  sea  of  civil  war. 

In  the  State  of  Florida  were  two  separate 
races — one  white  and  the  other  black — of  which 
the  one  was  slave  to  the  other,  and  Lewis  be 
longed  to  the  race  which  was  master.  It  was 
a  custom  of  this  State  for  masters  to  whip  their 
slaves,  sell  them,  kill  them,  and  receive  the  con 
stant  homage  which  the  oppressed  offer  to  the 
powerful.  It  was  the  custom  of  this  State  to 
whip  and  burn  men  who  preached  against  the 
custom.  It  was  the  custom  to  defend  this  insti- 


ARGUMENT    OF   W.    E.    DOSTER. 


309 


sailed,  and  a  code  that  remembered  friends  and 
never  forgave  enemies.  These,  then,  were  the 
morals  and  instincts  of  the  lad — it  is  right  to 
kill  negroes,  right  to  kill  abolitionists ;  it  is 
only  wrong  to  break  promises,  to  forget  a 
friend,  or  forgive  an  enemy  ;  and  to  do  right 
is  to  be  ready  with  bowie-knife  and  pistol. 

Now  let  me  ask  whether  in  the  wide  world 
there  is  another  school  in  which  the  prisoner 
could  so  well  have  been  trained  for  assassina 
tion  as  in  this  slave  aristocracy  ?  The  stealth- 
iest  Indian  that  ever  shot  from  ambush  was  not 
so  well  instructed  in  the  social  use  of  his  knife; 
the  deadliest  Gheber  that  ever  strangled  his 
victim  had  not  the  animosity  which  comes  from 
power  in  danger  of  losing  its  slaves,  nor  the 
cheap  regard  for  human  life  which  comes  from 
trading  in  and  killing  slaves.  All  the1  horrible 
accomplishments  of  assassination,  which  Ma- 
chiavel  says  are  three — "  fierceness  of  nature, 
resolute  undertakings,  and  having  had  one's 
hands  formerly  in  blood,"  are  his  by  religion,  by 
politics,  by  law,  by  education,  and  by  custom. 
And  who  is  responsible  for  this  training  of  the 
lad  ?  Standing,  as  we  do  to-day,  at  the  end  of 
a  four  years,  war,  having  just  heard  again  re 
cited  tales  of  prisoners  starved,  cities  infected, 
cities  burned,  prisons  undermined — things  that 
seem  unparalleled  in  the  barbarity  of  all  ages 
— and  all  by  men  who,  four  years  ago,  sat  side 
by  side  with  us,  and  seemed  no  different,  we 
now  know,  what  we  never  dreamt  of,  that  this 
is  the  spirit  of  slavery,  stripped  of  its  disguise. 
In  rebellion  we  now  recognize  the  masternever 
taught  to  obey ;  in  arson  of  cities  we  see  again 
the  fagot  and  the  stake;  in  Libby  and  Ander- 

in  this  State  that  their  blood  and  breeding  I  sonville  we  see  again  the  slave-pen ;  in  cap- 
were  better  than  the  blood  and  breeding  of  j  tures  the  bloodhound  and  the  lash;  in  assassin- 
Northerners  ;  that  they  had  more  courage,  more  ation  the  social  bowie-knife  and  pistol;  and  in 
military  prowess,  and  were  by  nature  superiors.  |  this  prisoner  the  legitimate  moral  offspring  of 
This  conviction  the  war  threatened  to  over 
throw,  this  boast  the  war  was  to  vindicate,  this 


tution  in  meeting-houses,  at  political  gather 
ings,  in  family  prayers.  It  was  the  custom  to 
hunt  fugitives  with  bloodhounds — even  those 
who  tried  to  help  them  to  freedom. 

In  this  custom  the  prisoner  was  bred  ;  educa 
tion  made  it  a  second  nature ;  politicians  had 
taught  him  to  find  it  in  the  Constitution, 
preachers  had  taught  him  to  find  it  in  the  Bible, 
the  laws  taught  him  to  regard  it  as  property, 
habit  had  made  it  a  very  part  of  his  being.  In 
the  eyes  of  the  lad,  the  war  meant  to  abolish 
this  custom  and  upheave  society  from  its  foun 
dations.  His  inheritance  was  to  be  dissipated, 
his  vassals  equals,  his  laws  invaded,  his  re 
ligion  confounded,  his  politics  a  heresy,  his 
habits  criminal.  Hereafter,  to  strike  a  slave 
was  to  be  an  assault,  to  sell  one  felony,  to  kill 
one  murder.  For  this,  then,  the  lad  was  going 
to  fight — the  defense  of  a  social  system.  That  was 
the  reason.  It  was  a  traditional  political  pi*e- 
cept  of  the  State  in  which  the  prisoner  lived, 
that  the  State,  like  its  elder  sisters,  had  reserved 
the  right  of  divorcing  itself  at  pleasure  from  the 
Union,  and  that  great  as  the  duty  of  a  citizen 
might  be  to  the  Union,  his  first  duty  was  to 
Florida.  Schoolmasters  taught  that  the  rela 
tive  rights  of  State  and  Nation  had  been  left- 
unsettled;  politicians  taught  that  the  local 
power  was  greater  than  the  central,  and  in  sup 
port  of  it  men  were  sent  to  Washington.  The 
war,  in  the  eyes  of  the  boy,  meant  to  reverse 
this,  to  subordinate  the  State  to  the  Nation,  the 
Governor  to  the  President,  Tallahassee  to  Wash 
ington  City.  And,  therefore,he  was  going  to  fight; 
to  defend  State  rights.  That  was  the  second  reason. 

It  was  a  deep-seated  conviction  of  the  people 


superiority   was,   by  the   war,  intended    to   be 


slavery.  State  rights,  chivalry,  and  delusion. 

But  who  is  to  blame  that  he,  with  five  millions 
more,  was  so  instructed,  so  demoralized,  so  ed- 


proved.     And  this  was  the  third  reason  he  was    ucated  to  crime  ?     Is  it  his  father  and  mother  ? 


going  to  fight — to  show  that  he  ivas  a  better  man 


than  Northerners. 

There   was   a    frantic  delusion 


people    that  Northern  men  were  usurping  the 


They  found  their  precepts   in   the  Bible;  they 


gave  their  son  but  the  customs  they  had  them- 
among  these   selves  inherited.      Is  it  the  society  of  Florida? 


It  was  a  society  that  ruled   this   country  until 


Government,  were  coveting  their  plantations,, ., , r ~ 

were   longing  to  pillage   their  houses,  ravage  }  Government.     Is  it  the  laws  of  Florida  ? 
their  fields,  and  reduce  them  to  subjection.  The 
war  was  to  defend  mother,  sister,  home,  soil, 


and  honor,  and  beat  back  an  insolent  invader. 
This  was  the  fourth  reason — to  repel  invasion. 
These  were,  in  the  mind  of  this  lad,  the  incentives 


within  four  years,  and  occupied   the  seats   of 

They 

were  but  rescripts  of  the  Constitution.      Is  it 
the  Constitution?     That  is  but  the  creation  of 


our  forefathers.  Who,  then,  is  responsible  that 
slavery  was  allowed  to  train  assassins  ?  I 
answer,  it  is  we;  we,  the  American  people; 


to  war.     Let  us  not  pass  unnoticed  how  he  was  j  we   who  ha.ve   cherished  slavery,  have  compro- 


schooled  in    the   instincts   and    morals  of    war. 
Under  the  code  of  slavery  we  know  that  the 


mised  with  it,  have  for  a  hundred  years  ex 
tended  it,  have  pandered  to  it,  and  have  at  last, 


murder  of  a  companion  with  a  bowie-knife  or  j  thanks  be  to  God,  destroyed  it.  Let  us,  then,  not 
in  a  duel  was  an  index  of  spirit;  the  torture  of  j  shrink  from  our  responsibility.  If  there  be 
negroes  evidence  of  a  commanding  nature;  any  Southerner  here  who  has  sought  to  foster 


concubinage  with  negroes  a  delicate  compliment  slavery,  he  is  in  part  father  of  the  assassin  in 
to  wives  ;  spending  wealth  earned  by  other  |  this  boy.  If  thei-e  be  any  Northerner  here  who 
men  in  luxuriance,  chivalric;  gambling  the  j  has  been  content  to  live  with  slavery,  he  is  also 


sweet  reprieve  for  confinement  to  plantations. 
Instead  of  morals  had  sprung  up  a  code  of 
honor — perhaps  a  false,  but  surely  an  exacting 
and  imperious  code,  that  kept  bowie-knives  in 
the  belt  and  pistols  in  the  pocket,  and  had  no 
hesitation  in  using  them  when  slavery  was  as- 


in  part  father  of  the  assassin  in  this  boy.  If 
there  be  any  American  that  has  been  content 
to  be  a  citizen  of  a  slaveholding  republic,  he  is 
part  father  of  the  assassin  in  this  boy.  Nay, 
all  of  us — such  as  he  is  we  have  made  him — 
the  murderous,  ferocious,  and  vindictive  child 


310 


THE    CONSPIRACY    TIIIAL. 


of  by-gone  American  Constitution  and  laws. 
And  what  is  to  be  the  fate  of  our  offspring? 
Let  us  see.  That  it  is  criminal,  let  us  reform 
it;  that  it  is  deluded,  let  us  instruct  it.  But  let 
us  not  destroy  it,  for  therein  we  punish  others 
for  our  own  crimes.  Let  the  great  American 
people  rather  speak  thus  :  "  For  twenty  years 
we  have  sent  you  to  a  wicked  school,  though  we 
knew  not  the  wickedness  thereof,  until  our  own 
child  rebelled  against  us.  Now  we  have  torn 
down  the  school-house  and  driven  out  the  mas 
ter.  Hereafter  you  shall  be  taught  in  a  better 
school,  and  we  will  not  destroy  you,  because 
you  learnt  but  as  instructed." 

II.  But  there  is  another  school  before  him — 
the  school  of  war.  At  Richmond  his  regiment 
joined  the  army  of  Gen.  Lee,  and  was  joined  to 
A.  P.  Hill's  corps  ;  with  it  he  shared  the  fate  of 
the  rebel  army,  passed  through  the  Peninsular 
campaign,  the  battles  of  Chancellorsville  and 
Antietarn.  Here  he  heard  that  his  two  brothers 
were  killed  at  Murfreesboro.  Finally,  on  the 
3d  of  July,  1803,  in  the  charge  upon  the  Federal 
center,  at  Gettysburg,  he  was  wounded,  taken 
prisoner,  and  detailed  as  a  nurse  in  Pennsyl 
vania  College  Hospital. 

Let  us  pause  again  to  consider  the  effect  of 
two  years'  campaigning  as  a  private  in  the 
army  of  Gen.  Lee  upon  the  moral  nature  of  the 
accused.  He  was  one  of  that  army  who  made 
trinkets  and  cups  out  of  the  bones  of  Union 
soldiers — an  army  where  it  was  customary  to 
starve  prisoners  by  lingering  agonies,  which 
supplied  its  wants  by  plundering  the  dead, 
which  slew  men  after  surrender,  that  was  com 
manded  by^ofncers  who  had  violated  their  sacred 
oaths  to  the  United  States,  and  who  taught  their 
subordinates  that  such  violation  was  justifiable; 
an  army  who  were  taught  by  Jackson  that  God 
was  the  champion  of  their  cause;  an  army  that 
held  the  enemy  in  quest  of  "booty  and  beauty;" 
an  army  which  believed  no  means  that  helped 
the  cause  of  Southern  independence  unjustifi 
able,  but  glorious  ;  an  army  who  for  two  years 
explained  victory  by  the  righteousness  of  the 
cause — finally,  an  army  that  held  the  person  and 
Cabinet  of  the  President  in  holy  execration. 
Surely  he  could  riot  pass  through  these  two  ter 
rible  years  without  being  in  his  moral  nature 
the  same  as  the  army  of  which  he  formed  a 
part.  He  is  now  eighteen,  and  the  last  two 
years  have  formed  his  character.  He  also  ab 
hors  the  President  of  the  Yankees;  he  also  be 
lieves  that  victory  comes  because  God  is  just; 
he  also  believes  that  nothing  is  bad  so  the  South 
be  free  ;  he  also  regards  a  Federal  as  a  ravisher 
and  robber;  he  also  prays  with  Jackson  to  God 
for  the  victory.  He  further  believes  in  Heaven 
and  General  Lee;  dresses  himself  in  the  clothes 
of  Union  dead;  stands  guard  over  starving  pris 
oners;  also  has  his  cup  carved  out  of  some  Fed 
eral  skull.  Besides,  he  has  learned  the  ordinal'}* 
soldier's  lessons,  to  taste  blood  and  like  it;  to 
brave  death  and  care  nothing  for  life ;  to  hope 
for  letters  and  get  none ;  to  hope  for  the  end  of 
the  war  and  see  none;  to  find  *n  victory  no 
more  than  the  beginning  of  another  march;  to 
look  for  promotion  and  get  none ;  to  pass  from 
death  and  danger  to  idleness  and  corruption;  to 
ask  for  furloughs  and  get  none,  and  finally,  to 


despair,  and  hope  for  death  to  end  his  sufferings. 
The  slave-driver  has  now  become  a  butcher; 
the  slaveholder  a  pillager;  he  who  found  divine 
authority  to  support  slavery  in  sermons  now 
finds  it  in  action;  he  who  was  led  by  fanatical 
politicians  is  now  led  by  fanatical  generals; 
and  he  who  had  once  only  the  instincts,  has 
now  the  practice  and  habit  of  shedding  North 
ern  blood.  These  two  years  of  carnage  and 
suffering,  from  sixteen  to  eighteen,  when  the 
character  is  mobile  and  pliable,  and  which  he 
would  have  naturally  spent  at  college  among 
poets  and  mythologies  and  tutors,  are  spent  on 
picket,  with  fierce  veterans,  in  drunken  quar 
rels,  with  cards,  with  oaths,  in  delirious  charges, 
amid  shot  and  shell,  amid  moaning  wounded 
and  stinking  dead,  until,  at  eighteen,  he  has  the 
experience  of  a  Cambronnc,  the  ferocity  of  an 
Attilla,  and  the  cruelty  of  a  Tartar.  This,  gen 
tlemen,  is  the  horrible  demoralization  of  civil 
war.  It  makes  loyalty  a  farce,  justifies  per 
jury,  dignifies  murder,  instills  ferocity,  scorns 
religion  and  enjoins  assassination  as  a  duty. 
And  whose  fault  is  it  that  he  was  so  demoral 
ized,  and  so  educated  in  public  vices,  instead 
of  public  virtues,  on  the  field  of  war?  Let  us 
be  just,  and  not  shrink  from  the  inquiry,  Was 
it  our  forefathers  who  sowed  the  seed  of  discord 
in  the  charter  of  Union  ?  If  so,  then  let  their 
memories  pay  the  penalty;  but  spare  the  fruit 
which  has  involuntarily  ripened  in  the  heart 
of  this  boy.  Was  it  the  Southern  leaders? 
Then  let  them  pay  the  penalty  ;  but  spare  their 
ignorant  and  misguided  tool.  Was  it  Generals 
Lee  and  Jackson  and  Hill,  who  were  his  imme 
diate  models  and  tutors  in  crime?  Then  pun 
ish  them;  but  spare  their  pupil.  Was  it,  per 
haps,  fanatical  malcontents  among  Northern 
men  who  first  lighted  the  torch  of  war?  Then 
extirpate  them  from  the  land;  but  spare  the 
boy  whose  passions  caught  fire,  and  burnt  until 
they  consumed  him.  Kest,  then,  the  responsi 
bility  of  this  war  with  whom  it  will — with  the 
living  or  dead,  with  the  vicissitudes  of  things  or 
in  the  invisible  plans  of  God — it  is  not  with  this 
plastic  boy,  who  came  into  the  world  in  the  year 
of  the  annexation  of  Texas,  has  lived  but  lour  ad 
ministrations,  and  is  younger  than  the  last  com 
promise  with  slavery.  lie  is  the  moral  product  of 
the  war,  and  belongs  to  them  who  first  began  it. 

Now,  I  hear  it  said,  true,  the  boy  has  been  a 
rebel  soldier,  and  we  can  forgive  him;  but  we 
can  not  forgive  assassins.  Let  us,  for  a  mo 
ment,  compare  a  rebel  soldier  with  the  prisoner, 
and  see  wherein  they  differ.  The  best  rebel 
soldiers  are  native  Southerners.  So  is  he.  The 
best  rebel  soldiers  have  for  four  years  longed 
to  capture  Washington,  and  put  its  Government 
to  the  sword.  So  has  he.  The  best  rebel 
soldiers  have  fought  on  their  own  hook,  after 
the  fashion  of  the  provincials  during  the  llevo- 
lution,  finding  their  own  knives,  their  own 
horses,  their  own  pistols.  So  has  he.  The  best 
rebel  soldiers  have  fired  at  Mr.  Lincoln  and 
Mr.  Seward,  have  approached  the  city  by  stealth 
from  Baltimore,  and  aimed  to  destroy  the  Gov 
ernment  by  a  sudden  blow.  So  has  he.  The 
best  rebel  soldiers  have  picked  off  high  officers 
of  the  Government — Kearney,  Stevens,  Baker, 
Wadsworth,  Lyon,  Sedgwick.  So  has  he. 


ARGUMENT    OF   W.    E.    DOSTER. 


311 


What,  then,  has  he  done  that  every  rebel 
soldier  has  not  tried  to  do?  Only  this:  he  has 
ventured  more;  he  has  shown  a  higher  courage, 
a  bitterer  hate,  and  a  more  ready  sacrifice;  he 
has  aimed  at  the  head  of  a  department,  instead 
of  the  head  of  a  corps;  he  has  struck  at  the 
head  of  a  nation,  instead  of  at  its  limbs;  he 
has  struck  in  the  day  of  his  humiliation,  when 
nothing  was  to  be  accomplished  but  revenge, 
and  when  lie  believed  he  was  killing  an  op 
pressor.  As  Arnold  Vinkelried  was  braver 
than  all  the  combined  legions  of  Switzerland, 
when  he 

"Felt  as  though  himself  were  lie 
On  whose  sole  arm  hung  victory;" 

as  Leonidas,  who  threw  himself  in  the  gap  of 
Thermopylas,  was  braver  than  all  the  Grecian 
hosts;  as  Mucius  Seaevola  was  the  bravest  of 
the  Roman  youth  when  he  approached  Porsena 
with  intent  to  assassinate,  and  said:  " Ilostis 
hostem  occidere  volui;  nee  ad  mortem  minus  animi 
est,  quum  fuit  ad  coedem.  Et  faccrc  et  pati  fortia, 
Romanum  est;'1  so  was  this 'youth  braver  than 
all  the  rebel  hosts  when  he  came  to  offer  up  his 
life  by  killing  the  chief  of  the  enemy. 

As  Harmedius  and  Aristogeton  were  more 
careless  of  their  lives  than  the  rest  of  the 
Athenian  youth  when  they  killed  Hippias  and 
Hipparchus,  as  Brutus  said  on  the  market 
place:  "As  I  slew  my  best  lover  for  the  good  of 
Rome,  I  have  the  same  dagger  for  myself  when 
it  shall  please  my  country  to  need  my  death;" 
BO  was  this  boy  more  ready  to  offer  up  his  life 
for  what  he  believed  to  be  the  good  of  his  coun 
try.  And  as  Gerard  was  the  bitterest  Catholic 
of  the  Netherlands  when  he  slew  the  Prince  of 
Orange;  Ravaillac  the  bitterest  enemy  of  the 
Protestants  when  he  slew  Henry  IV.;  as  Jacques 
Clement  was  the  bitterest  Catholic  when  he 
killed  Henry  III;  as  Orsini  was  the  most  bitter 
Italian  when  he  tried  to  kill  Louis  Napoleon, 
so  this  boy,  remembering  his  two  slaughtered 
brothers,  was  the  bitterest  Southerner  of  all 
that  defied  the  Government. 

Courage,  then,  martyrdom,  inextinguishable 
hate  for  oppression,  are  his  sins.  Now,  if 
courage  be  a  crime,  then  have  you  and  I,  and 
all  of  us,  who  have  braved  death,  been  crim 
inals?  Then  are  the  emblems  of  valor,  which 
a  grateful  country  has  placed  upon  your  shoul 
ders  and  breasts,  but  marks  of  crime.  Is 
readiness  to  be  sacrificed  for  the  common  good 
a  crime?  Then  are  the  millions  of  heroic  youths, 
who  have  left  the  plow  and  girded  on  the  sword 
for  four  years,  but  criminals;  then  is  our  ban 
ner  but  the  flag  of  crime;  then  are  our  battle 
fields  but  loathsome  scenes  of  general  fratri 
cidal  murder.  Is,  then,  undying  hatred  for 
what  is  believed  to  be  oppression  a  crime? 
Then  was  our  Revolution  but  successful  crime. 
Then  were  the  struggles  of  Tyrol,  of  Hungary, 
of  Venice,  of  Greece,  but  unsuccessful  crimes. 
Then  was  JJVVOM  a  traitor  to  Greece,  Garibaldi 


a  traitor  to  .' 
tria,  Hofer    a 


'istria,  Kossuth  a  traitor  to  Aus- 
i-aitor  to  Austria,  and  Washing 


ton  a    traitor  to   England.     Mark,    throughout 
the   history   of    the   world,    there  is    no  lesson 


But  I  hear  a  student  of  history  reply:  True; 
but  they  must  have  been  oppressors.  Granted; 
but  who  is  to  be  the  judge?  There  can  be  no 
one  but  the  assassin  himself.  It  is  he,  and  he 
only,  who  takes  the  risk  of  becoming  a  deliv 
erer,  or  a  foul  and  parricidal  murderer.  Let 
us,  then,  see  what  these  people  were,  against 
whom  he  aimed  his  blow  and  what  they  ap 
peared  to  him.  In  truth,  if  you  seek  for  char 
acters  in  history,  you  will  find  none  further 
removed  from  the  oppressors  than  our  late  Presi 
dent  and  the  Secretary  of  State.  The  one  was 
the  great  emancipator,  the  deliverer  of  a  race 
from  bondage,  the  great  salvator,  the  deliverer 
of  a  nation  from  civil  war.  The  other  was  the 
great  pacificator,  the  savior  from  foreign  war, 
the  uniter  of  factions,  the  constant  prophet  and 
messenger  of  good  will  and  peace.  This  is 
how  they  seemed  to  us;  but  such  were  they  not 
in  the  eyes  of  this  boy,  or  of  five  millions  of 
his  fellow-countrymen.  To  them,  the  one  ap 
peared  a  usurper  of  power,  a  violator  of  laws, 
a  cruel  jester,  an  invader,  a  destroyer  of  life, 
liberty  and  property;  the  other  a  cunning  time- 
server,  an  adviser  in  oppression,  and  a  slippery 
advocate  of  an  irrepressible  conflict.  These 
Southern  men  had  long  borne  power,  and,  in 
their  obscurity,  felt 
which  once  cried: 


the   envy   for   greatness 


"  Ye  gods  !  it  doth  amaze  us, 
A  man  of  sucli  a  feeble  temper  should 
So  get  the  start  of  the  majestic  world 
And  bear  the  palm  alone." 

#  *  #  #  >;•- 

"  Why  man,  ho  doth  bestride  the  narrow  world 
Like  a  colossus,  and  we  petty  men 
Walk  under  his  huge  legs,  and  peep  about 
To  find  ourselves  dishonorable  graves." 

This  was  his  idea  of  Mr.  Lincoln  and  Mr. 
Seward.  This  was  what  he  heard  in  Florida, 
among  the  village  politicians.  This  was  what 
he  read  in  the  Richmond  papers,  in  the  orders 
of  the  generals,  in  the  gossip  of  the  camp-fire, 
the  letters  that  he  got  from  home.  Every 
farmer  by  whose  well  he  filled  his  canteen  told 
him  that;  every  Southern  lass  that  waved  her 
handkerchief  toward  him  repeated  it;  his  mother 
in  mourning  told  it;  every  prisoner  returned 
from  Northern  prisons  told  it;  every  wayside 
cripple  but  confirmed  it.  Lincoln,  thft  op 
pressor,  was  in  the  air,  it  was  in  the  echo  of  the 
drum,  it  was  in  the  whizzing  of  the  shell,  it 
ame  on  every  breeze  that  floated  from  the 
North.  Wonderful  was  his  error;  strange,  in 
deed,  is  it  that  charity  and  liberty  should  be 
thus  misconstrued.  Let  us,  then,  remember  that 
if  he  was  wrong  he  erred  on  the  side  of  courage, 
on  the  side  of  self-sacrifice,  and  on  the  side  of 
hatred  to  what  he  believed  to  be  oppression; 
that  he  differs  from  the  Southern  army  simply 
because  he  surpassed  it  in  courage;  that  he 
differed  from  a  patriot  and  a  martyr,  simply 
because  he  was  mistaken  in  his  duty. 

If,  then,  you  praise  men  because  they  kill 
uch  as  they  believe  oppressors,  you  must  praise 
him;  if  you  praise  men  who  are  ready  to  die 
for  their  country,  you  will  praise  him;  and  if 
you  applaud  those  who  show  any  courage  su 
perior  to  the  rest  of  mankind  you  will  applaud  him. 

taught  in  clearer  language  than  that  the  noblest]      III.  But   there  is  a  third  school  before  him. 

deed  of  men  is  to  free  the  world  of  oppressors.  I  From  Gettysburg  he  was  sent  to  West  Building 


312 


THE    CONSPIRACY   TRIAL. 


Hospital,  Pratt  street,  Baltimore,  and  remained  I 
until  October,  1863,  when,  seeing  no  hope  of  an 
exchange,  he  deserted  for  his  regiment,  and, 
walking  through  Winchester,  met  a  regiment 
of  cavalry  at  Fauquier.  Not  being  able  to  get 
through  our  lines,  he  was  joined  to  this  arm  of 
the  service,  and  remained  in  that  service  until 
January  1,  1865.  On  that  day,  as  we  see  by 
the  narrative  of  Mrs.  Grant,  he  saved  the  lives 
of  two  Union  soldiers.  About  the  same  time 
he,  like  many  of  the  Southern  soldiers,  began 
to  despair  of  the  Confederacy,  came  to  Alex 
andria,  sold  his  horse,  gave  his  name  as  Payne, 
took  the  oath  of  allegiance  as  a  refugee  from 
Fauquier,  went  to  Baltimore,  took  a  room  at  the 
house  of  Mrs.  Branson,  the  lady  he  had  met  at 
Gettysburg,  and  resolved  to  wait  for  the  return 
of  peace.  Now,  let  us  sec  what  he  learned  in 
the  third  school. 

The  rebel  cavalry  of  Northern  Virginia,  as 
we  now  know,  was  considered,  in  the  Southern 
army,  the  elite  of  their  horsemen.  Dismounted 
cavalrymen  of  the  army  of  the  Potomac  were 
sent  to  Northern  Virginia,  re-mounted  and 
then  returned  to  their  commands.  In  the  spirit 
of  war,  however,  they  differed  materially  from 
the  rest  of  the  Southern  forces.  First,  they 
came  intimately  in  contact  with  the  people  of 
London  and  Fauquier,  who  had  suffered  most 
from  the  war,  and  whose  hatred  of  Northern 
troops  was  more  bitter,  so  that  they  fought 
rather  from  personal  hate,  and  in  individual 
contests,  than  from  political  sentiments,  and 
in  battle.  Accordingly,  whatever  edge  of  acri 
mony  was  wanting  in  the  temper  of  Powell  he 
gained  at  the  houses  of  ruined  slaveholders  in 
Leesburg,  Aldie,  Middleburg,  and  Upperville. 
It  was  also  the  custom  of  those  soldiers,  and 
esteemed  honorable  from  their  stand-point,  to 
capture  quartermasters  and  paymasters,  lie 
in  wait  for  bearers  of  dispatches  and  import 
ant  generals,  and  to  make  sudden  attacks  and 
hurried  retreats.  Accordingly,  if  he  wanted  a 
certain  feline  intrepidity  in  planning  and  es 
caping — a  capacity  to  approach,  by  stealth,  exe 
cute  with  rapidity,  and  hurry  off  before  his 
victims  had  recovered  from  their  consterna 
tion — we  may  well  believe  that  he  learned  it  in 
this  third  school.  And  who  is  responsible  for 
the  third  school  ?  His  Colonel?  Then  let  him 
be  punished.  His  Captain?  He  is  now  at  lib 
erty.  General  Lee?  Then  let  him  abide  the 
consequences.  Jefferson  Davis,  who  commis 
sioned  them  ?  Then  let  the  blow  fall  on  him. 
This  boy  comes  here  with  no  marvellous  spirit 
of  fury,  that  we  should  wonder  and  say,  where 
has  he  learnt  all  this  ?  Where  among  men  are 
savages  formed  like  this  ?  He  comes  here  fresh 
from  Northern  Virginia,  with  all  its  sorrow  and 
all  its  bitterness.  On  the  tablets  of  his  mem 
ory  are  written  curses  of  many  a  ruined  mas 
ter;  in  his  cars  are  ringing  the  cries  of  women 
and  children,  and  the  moans  of  dying  men. 
Before  his  eyes  are  visions  of  burning  barns, 
ravaged  fields,  a  people  prostrate,  humble, 
starving,  homeless — a  land  once  beautiful,  now 
a  barren  waste,  peopled  by  famine,  disease,  and 
ruin — and  these  have  brought  him  here  to  seek 
a  quick  revenge.  We  know  that  we  have  done 
these  things  righteously,  with  malice  to 


ward  none,  for  the  salvation  of  the  Slate  nnd 
for  liberty.  But  the  wail  of  woe  and  lamen 
tation  is  not  the  less  piercing ;  the  ihirsi  for  a 
dire,  bitter  and  consuming  revenge,  is  not  the 
less  keen.  As  the  woes  of  Normandy  brought 
Charlotte  Corday  to  the  chamber  of  Murat,  as 
the  humiliations  of  France  brought  Louvel  to 
the  side  of  the  Duke  dc  Bcrri,  as  the  ravages 
in  Thuringia  brought  Stapps  to  Napoleon  at 
Schonbronn,  so  is  the  prisoner  at  the  bar  the 
messenger  of  Virginia's  sorrow  and  bitterness 
to  the  chamber  of  the  Secretary  of  State.  And 
how  are  we  to  meet  those  woes  and  bitterness 
and  their  deluded  messenger?  In  anger? 
That  were  only  to  confess  that  we  were  wrong 
in  inflicting  them.  No;  rather  let  us  say, 
"  What  we  have  done  was  more  in  love  than  in 
hate.  Let  us  forget  the  past.  For  your  sor 
rows  there  is  sympathy — for  your  bitterness 
there  is  charity.  From  henceforward  let  there 
be  peace,  and  let  the  great  sacrifice  which  we 
have  paid  you  make  us  forever  even." 

IV.  But,  there  is  a  fourth  school  before  him — 
the  school  of  necessity. 

Arrived  at  Baltimore  and  having  taken  up 
his  residence  with  Mrs.  Branson,  he  looked 
around  for  something  to  do.  He  had  no  trade 
or  profession.  The  period  in  which  he  would 
have  learned  one  was  spent  in  the  army;  and 
we  know  how  abhorrent  it  was  to  men  of  the 
South  to  engage  in  manual  labor;  and  as  his 
hands  attest,  he  has  never  engaged  in  any. 
Accordingly,  in  perplexity  about  his  future— - 
for  the  little  money  he  got  for  his  horse  was 
fast  going — he  whiled  away  the  time  in  read 
ing  medical  books  and  brooding  in  his  cham 
ber.  While  in  this  condition,  unable  to  get 
home,  unable  to  see  how  he  was  to  live  at  Bal 
timore,  the  fracas  occurred  by  which  he  was 
arrested,  brought  before  the  Provost  Marshal, 
and  ordered  north  of  Philadelphia. 

Picture  to  yourself  the  condition  of  this  un 
fortunate  victim  of  Southern  fanaticism,  sud 
denly  again  cast  into  the  street  and  exiled  from 
Baltimore,  a  stranger,  sundered  from  his  only 
friends,  in  a  strange  land.  He  thinks  of  his 
own  home  in  far-off  Florida,  but  between  him 
and  it  are  a  thousand  miles  and  a  rebel  army 
on  whose  rolls  he  is  a  deserter.  He  thinks  of 
rejoining  that  army,  but  between  him  and  it  is 
a  Union  army.  lie  thinks  of  the  unknown 
North  into  which  he  is  banished,  but  his  fingers 
refuse  the  spade  ;  he  thinks  of  a  profession,  but 
the  very  dream  of  one  is  now  a  mockery;  he 
thinks  of  going  where  no  one  knows  him,  but 
he  fears  that  after  all  the  curse  of  secession 
will  follow  him;  he  thinks  of  eluding  the  au 
thorities  and  staying  at  Baltimore,  but  then 
he  is  afraid  of  compromising  his  friends,  and 
leaves  them.  Everywhere  the  sky  is  dark. 
Among  Northern  men  he  is  persecuted,  for  he 
is  a  rebel;  among  Southern  men  at  Baltimore 
he  is  despised,  for  he  is  a  recreant  Southerner; 
among  Southern  men  at  home  he  is  a  by-word, 
for  he  is  a  deserter.  The  earth  seems  to  reject 
him,  and  God  and  man  to  be  against  him. 

Now,  if  there  be  any  man  in  this  Court  Avho 
has  ever  wandered,  penniless,  houseless,  friend 
less,  in  that  worst  of  solitudes,  the  street?  of 
a  strange  city,  with  hunger  at  his  stomach,  and 


ARGUMENT    OF    W.    E.    POSTER. 


313 


a  great  sense  of  wrong  at  his  heart,  in  rags, 
and  these  very  rags  betraying  him  as- a  thing 
to  be  despised  and  spurned;  afraid  of  meeting 
at  every  corner  the  peering  eyes  of  a  Govern-^ 
ment  detective;  too  proud  to  beg,  and,  when 
hunger  overcame  pride,  rejected  with  a  frown, 
that  man  will  understand  how  the  prisoner 
felt  in  the  beginning  of  March,  1865.  If  there 
be  any  man  who  has  ever  been  hunted  down  by 
misery  in  his  youth,  and  before  much  sorrow 
had  made  the  burden  easy,  until  he  wondered 
why  he  was  born,  and  hid  his  face  in  his  hands, 
praying  to  God  to  end  his  pain  forever,  he  also 
can  understand  how,  in  the  fulness  of  suffering, 
he  has  been  brother  to  the  accused. 

Well,  indeed,  had  it  been  for  him  if  some 
angel  of  mercy  had  on  that  day,  as  he  wan 
dered  a  hungry  specter  through  the  streets  of 
Baltimore,  with  flashing  eyes  and  disordered 
hair,  stretched  forth  her  hand  and  said:  "Here 
is  bread  ;  take,  eat,  and  live."  A  loaf  of  bread 
might  have  saved  him ;  a  single  wrord  of  kind 
ness  might  have  saved  him;  the  gracious  lick 
of  a  friendly  dog  might  have  saved  the  glow 
of  a  once  generous  heart  from  going  out  for 
ever.  We  have  all,  my  friends,  had  these  turn 
ing  points  in  our  lives,  and  we  all  reckon  back 
to  a  time  when  we  stood  in  the  midst  of  gloom, 
and  suddenly  it  was  glorious  day,  for  we  found 
a  plank  and  reached  the  shore.  His  Creator, 


in  His  inscrutable  wisdom,  thought  it  good  there 
should  be  no    ray  of  light,  no  beckoning  hand, 


V.  The  education  of  our  farmer's  boy  is  now 
complete.  He  has  been  in  four  schools.  Slavery 
has  taught  him  to  wink  at  murder,  the  South 
ern  army  has  taught  him  to  practice  and  justi 
fy  murder,  cavalry  warfare  has  taught  him  to 
love  murder,  necessity  has  taught  him  resolu 
tion  to  commit  murder.  He  neods  no  further 
education  ;  his  four  terms  are  complete,  and  he 
graduates  an  assassin !  And  of  this  college 
we,  the  re-united  people  of  the  United  States, 
have  been  the  stern  tutors,  guides  and  profess 
ors.  It  needs  now  only  that  some  one  should 
employ  him. 

I  need  not  pursue  this  dolorous  history  fur 
ther.  You  know  the  rest.  If  you  did  not  know 
it,  you  could  infer  it  from  what  has  gone  be 
fore.  That  he  should  meet  Booth  at  Barnum's 
Hotel,  enter  into  his  plans  eagerly,  and  execute 
them  willingly,  are  matters  of  course.  That  he 
should  care  nothing  for  money,  but  only  for  re 
venge  ;  that  he  should  hate  the  Lincoln  Gov 
ernment  like  a  slaveholder ;  that  he  should  en 
ter  the  house  of  a  cabinet  officer  like  a  guer 
rilla  ;  that  he  should  try  to  murder,  and  justify 
his  murder  like  a  Southern  soldier ;  that  he 
should  then  give  himself  up  willingly,  as  one 
who  exchanges  the  penalties  of  assassination 
for  suicide ;  that  he  should  sit  here  like  a 
statue,  and  smile  as  one  who  fears  no  earthly 
terrors,  and  should  tell  the  doctors,  calmly  and 


stoically,  th.it  he  only  did  what  he  thought  was 
right — all  these  things  are  as  certain  to  follow 

no  hope  for  the  prisoner.     Perhaps  it  had  been  j  as  use,  education  and  employment  necessity, 
better    if  he  had    dragged  himself  to  the  pier  |      Now,  in  considering  the  condition  of  Powell 
and  ended' his  career  in  suicide.     It  was  ordered  {  at  this  crisis,  I  do  not  ask  you  to  believe  he  was 


that  his  very  weakness  should  make  him  the 
prey  of  a  human  devil.  We  can  already  fore 
see  the  consequences.  He  is  desperate,  anxious 
for  death,  only  he  is  a  soldier,  and  he  will  not 
die  iugloriously,  after  having  faced  death  an 
hundred  times.  He  is  pursued  by  the  Govern 
ment  in  which  he  had  confided,  and  for  which 
he  had  deserted  his  own;  pursued,  tracked,  fol 
lowed  like  an  outlaw  among  mankind.  He 
will  show  that  Northern  Government  that  he  is 
not  a  dog,  and  that  Southern  Government  that 
he  is  not  a  traitor;  and  give  him  but  a  chance, 
and  he  will,  with  one  stroke,  pay  off  the  scores 
he  owes  the  abolitionists,  restore  himself  in  the 
eyes  of  his  comrades  in  arms,  and  throw  him 
self  into  the  arms  of  a  pitiful  eternity. 

And  who  is  to  blame  that  he  was  urged  to 
desperation  and  consequent  revenge?  I  an 
swer,  this  civil  war.  The  civil  war  took  him 
from  the  magnolias  and  orange  groves  of  Flor 
ida,  and  left  him  a  waif  upon  the  pavements  of 
a  Northern  city.  The  civil  war  took  the  inde 
pendent  farmer  from  his  fields,  and  left  him  a 
beggar  among  strangers.  The  civil  war  took 

him  from  honest  pursuits  and  professions,  and  ical  influence  wielded  by  the  stage  over  such, 
left  him  to  make  his  living  without  any  other  to  whom  its  tinsel  is  yet  reality.  But  he  was 
accomplishments  than  dexterity  in  murder,  j  chiefly  attracted  by  the  voice  and  manner  of 
The  civil  war  forbade  him  a  home  among  one  of  the  actors.  He  was  a  young  man  of 
Northern  men,  after  it  had  taken  him  away  about  twenty-five,  with  large,  lustrous  eyes,  a 
from  his  home  in  the  South.  The  civil  war  j  graceful  form,  features  classical  and  regular  as 
made  him  an  outcast  and  a  fugitive  on  the  face  j  a  statue,  and  a  rich  voice  that  lingered  in  the 
of  the  earth  ;  took  the  bread  out  of  his  mouth,  [ears  of  those  who  heard  him.  Although  only  a 
and  gave  him  the  alternative  of  dying  ob-|  private  soldier,  Powell  considered  himself  the 
Ecui-ely  by  his  own  hand,  or  notoriously  by  the  equal  of  any  man,  and  after  the  play  was  over 
death  of  a  public  officer.  sought  and  gained  an  introduction  to  the  actor. 


insane.  That  is  a  declaration  of  mental  dis 
ease  of  which  I  am  no  judge.  I  only  ask  you 
to  believe  that  he  was  human — a  human  being 
in  the  last  stage  of  desperation,  and  obeying 
self-preservation,  nature's  first  law.  It  is  ac 
knowledged  by  all  that  the  possession  of  reason 
only  makes  man  responsible  for  crime.  Now, 
there  are  two  ways  in  which  reason  is  van 
quished.  One  is  when  the  passions  make  war 
against  reason  and  drive  her  from  her  throne, 
which  is  called  insanity.  Another  is  when  the 
necessities  of  the  body  overcome  the  suggestions 
of  the  mind,  a  state  in  which  the  reason  is  a 
helpless  captive.  An/1  if  you  find  that  while 
his  reason  was  so  in  captivity,  he  surrendered 
to  temptation,  I  am  sure  you  will  set  it  to  the 
credit,  not  of  reason,  but  of  the  body,  whose 
wants  were  imperious  while  there  was  yet  no 
reason  in  it,  in  childhood,  and  wrhich  will  again 
exist  without  reason  after  death. 

At  the  beginning  of  the  war,  Powell,  one 
night,  secured  a  pass  and  went  to  the  theater  at 
Richmond.  It  was  the  first  play  that  Powell 
ever  saw,  and  he  was  spellbound  with  that  mag- 


314 


THE    CONSPIRACY    TRIAL. 


Never  were  two  natures  thrown  together  so  dif 
ferent,  yet  so  well  calculated,  the  one  to  rule, 
the  other  to  be  ruled.  The  soldier  was  tall, 
awkwark,  rough,  frank,  generous  and  illiterate. 
The  actor  was  of  delicate  mold,  polished,  grace 
ful,  subtle,  with  a  brilliant  fancy,  and  an 
abundant  stock  of  reading.  Each  was  what 
the  other  was  not,  and  each  found  in  the  other 
an  admirer  of  the  other's  qualities.  The  actor 
was  pleased  to  have  a  follower  so  powerful  in 
his  muscles,  and  Powell  was  irresistibly  drawn 
to  follow  a  man  so  wondrously  fascinating  and 
intellectual.  They  saw  enough  of  one  another 
to  form  a  close  intimacy,  and  confirm  the  con 
trol  of  the  actor  over  Powell,  and  parted,  not  to 
meet  for  nearly  four  years. 

In  the  twilight  of  that  memorable  day  in 
March,  which  I  have  described,  Powell  was 
dragging  himself  slowly  along  the  street  past 
Barnum's  Hotel — a  poor  creature  overcome  by 
destiny.  Suddenly  a  familiar  voice  hailed  him. 
Looking  up  the  steps,  he  saw  the  face  of  the 
Richmond  actor.  The  actor  on  his  side  ex 
pressed  astonishment  to  find  Powell  in  such  a 
plight — for  the  light  in  the  eyes  of  a  desperate 
man  needs  no  translation — and  in  that  distant 
city.  Powell  answered  him  in  few  words : 
"  Booth,  I  want  bread — I  am  starving."  In  or 
dinary  circumstances,  I  do  not  doubt  but  Booth 
would  have  said,  come  inand  eat;  but  just  now 
he  was  filled  with  a  mighty  scheme,  for  he  had 
just  been  to  Canada,  and  was  lying  in  wait  for 
agents.  So  he  did  not  give  him  to  eat;  he  did 
not  tell  him  to  go  and  die,  but  he  seized  with 
eagerness  upon  this  poor  man's  hunger  to  wind 
about  him  his  accursed  toils,  saying,  "I  will 
give  you  as  much  money  as  you  want,  but  first 
you  must  swear  to  stick  by  me.  It  is  in  the 
oil  business.  '  An  empty  stomach  is  not  cap- 


earth,  except  by  rendering  a  great  service  to 
the  South.  He  touched  upon  his  melancholy, 
and  said  if  he  must  die,  he  should  oiler  up  his 
life  in  a  manner  that  would  bequeath  his 
name  as  a  blessing  to  posterity.  Powell  now 
awoke  from  the  depth  of  despair  to  the  highest 
pinnacle  of  agonized  excitement.  It  was  as  if 
he  had  been  breathing  that  subtle  Eastern  poi 
son,  wherein  the  victim  sees  swimming  before 
his  eyes  a  vision  of  more  than  celestial  felicity, 
but  far  otf  and  unattainable.  What  wonder  he 
swam  in  dreams  of  delicious  pain  !  Instead  of 
that  former  melancholy,  he  felt  au  eager  desire 
to  live,  instead  of  that  long  torpor,  he  felt  all 
the  old  wounds  bleeding  again,  and  burned  to 
avenge  the  South.  Instead  of  laboring  like  a 
negro,  he  saw  a  vague  vision  of  rolling  in 
boundless  wealth.  Instead  of  being  cursed  by 
his  kinsmen,  he  was  fired  with  zeal  to  be  cher 
ished  as  one  of  her  chief  martyrs.  Instead  of 
being  the  toy  of  fortune,  he  dreamed  of  being 
her  conqueror.  But  yet  he  saw  no  avenue  to 
all  this,  and,  spell-bound  as  he  was,  turned  to 
his  tormentor,  who  held  him  as  firmly  as  ever 
Genii  did  their  fabled  imps,  for  the  explana 
tion,  for  the  means  and  quick  road  to  happiness. 
Booth  saw  his  victim  was  ready,  and  hastened 
to  impart  his  mysterious  plans.  The  first  plan 
was  to  go  to  Washington,  take  a  ride  with  con 
federates,  on  horseback,  to  the  Soldiers'  Home, 
capture  the  President,  and  deliver  him  to  the 
Rebel  authorities.  This  failed.  The  second 
plan  was  to  kill  the  heads  of  the  State — a  plan 
first  broached  to  Payne  on  the  evening  of  the 
14th  of  April,  at  eight  o  clock. 

Booth,  on  the  evening  of  the  14th,  at  eight 
o'clock,  told  him  the  hour  had  struck  ;  placed  in. 
his  hands  the  knife,  the  revolver,  and  the  bogus 
package  of  medicine;  told  him  to  do  his  duty, 


tious  of  oaths,  and  Powell  then  swore   that  fa-  j  and  gave  him  a  horse,  with  directions  to  meet  be 


ta!  oath,  binding  his  soul  as  firmly  to  Booth  as 
Faust  to  Mephistopheles,  and  went  in  and 
feasted.  Next  morning  Booth  gave  him  money 


yond  the  Anacosta  bridge;  and  he  went  and  did 
the  deed.  I  have  asked  why  he  did  it.  His 
only  answer  is  :  "Because  I  believed  it  my  duty.' 


enough  to  buy  a  change  of  clothing  and  keep|  VI.  Now,  let  us  not  be  deceived  by  the  spe- 
him  for  a  week.  Powell  now,  became  anxious  i  cial  name  of  assassination,  and  confound  it 
to  know  what  plan  it  was  that  was  to  make)  with  the  conscientious  killing  of  what  is  bc- 
him  rich,  but  Booth  answered  evasively  that  it  |  lieved  to  be  an  oppressor.  When  we  read  of 


was  in  the  oil  business.  He  knew  well  enough 
that  he  had  to  do  with  a  desperate  man,  but  lie 
knew,  also,  that  any  proposition  of  a  guilty 
character  might  as  yet  be  rejected.  He  must 
get  full  control  of  this  desperate  tool,  and  instil 
into  his  nature  all  the  subtle  monomania  of  his 
own.  Accordingly  he  proceeded  to  secure  ev 
ery  thought  and  emotion  of  Powell.  With  a 


assassination  we  involuntarily  bring  to  mind 
examples  of  men  hired  by  statesmen  to  make 
away  with  princes.  There  is  the  Italian  per 
fumer,  Rogeri,  of  Catherine  de  Medici ;  there  is 
Orloll,  of  Catherine,  and  Alexander,  of  Russia; 
we  think  of  the  tools  used  by  Tiberius,  by 
Richard  III,  Philip  the  II,  by  Mary  of  Scotland, 
by  Louis  XI,  and  our  minds  arc  filled  with  as- 


master  pencil  he  painted  before  the  eyes  of  this  !  sociations  with  State  murders  accomplished  by 
boy  the  injuries  of  the  South  and  the  guilt  of  j  tigers  in  human  shape  killing  for  gold, 
her  oppressors.  He  reminded  him  of  devastated  I  But  there  is  another  type  of  assassination 
homes,  negroes  freed,  women  ravished,  the  and  of  so-called  assassins.  That  comes  to  pass 
graves  of  his  brothers  on  a  thousand  hillsides. ;  when  a  fanatic,  religious  or  political,  deems 
He  reminded  him  that  he  was  a  traitor  to  the  it  his  duty  to  offer  up  his  life  in  exchange  for  the 
Southern  cause,  and  that  it  was  necessary  he  '  life  he  believes  to  be  a  public  enemy.  This  is  the 
should  regain  the  favor  of  his  country.  He  Sand  of  Kotzebue.  the  (Onlay  of  Murat,  the  Count 
pointed  out  to  him  his  desperate  condition — a  '  Ankerstroeiu  of  Gustavus  111,  the  Brutus  of  CEC- 
fugitive  from  his  friends,  and  an  exile  among  sar,  the  Gerard  of  Orange,  the  Ravaillac  of 
strangers.  He  touched  him  upon  his  pride,  and  Henry  IV — men  who  may  ally  themselves  with 
showed  him  how  he  was  born  a  gentleman,  and,  others,  but  who  receive  their  orders  immediately, 
ought  to  live  as  a  gentleman.  He  touched  upon  '  as  they  believe,  from  God  himself. 
his  helplessness,  and  showed  him  that  there  was  The  first  order  kills  for  money,  it  is  hired 
no  hope  for  him,  in  peace  or  war,  in  heaven  or  by  princes,  it  would  for  money  kill  its  em- 


ARGUMENT    OF    W.    E.    DOSTER. 


315 


ployers,  it  uses  concealment,  it  is  ashamed,  it 
strikes  in  masks  and  dominoes,  and  when 
caught  gives  way  to  despair.  Not  so  the  sec 
ond  order.  It  glories  in  its  deed,  it  goes  joy 
fully  to  its  own  death,  it  has  commandments 
from  Heaven,  it  stabs  without  changing  its 
dress,  it  makes  no  effort  to  escape,  it  gladly  de 
livers  itself  up ;  on  trial  it  is  composed  as  on 
the  eve  of  triumph,  it  justifies  its  crime,  it 
makes  no  defense,  and  longs  for  death,  saying, 
in  the  words  of  Corday,  "  To-morrow  I  hope  to 
meet  Brutus  and  the  other  patriots  in  Elysium." 
It  needs  no  argument  to  show  to  which  class 
the  prisoner  belongs.  He  did,  indeed,  consort 
with  others,  but  he  lent  his  ear  only,  as  one 
would  say  : 

"  What  is  that  you  would  impart  to  me  ? 
If  it  be  aught  toward  the  general  good 
Set  honor  in  one  eye  aud  death  in  the  other, 
And  I  will  look  ou  both  indifferently  ; 
Fur,  let  the  gods  so  speed  me,  as  I  love 
The  name  of  honor  more  thau  I  fear  death." 

You  have  not  shown  that  any  gold  has  soiled 
his  motive.  You  have  shown  that  he  gained 
from  others  plans,  made  with  them  agreements 
of  time  and  place  ;  but  the  motive,  the  spirit, 
the  self-sacrifice,  the  courage,  the  justification, 
the  longing  for  death  is  all  his  own.  He  alone 
says  he  thought  it  was  his  duty. 

I  say  he  is  the  fanatic,  and  not  the  hired 
tool;  the  soldier  who  derived  his  orders  from 
conscience,  and  who,  in  the  applause  of  that 
tribunal,  smiles  at  all  earthly  trials.  How  else 
do  you  explain  his  bearing?  He  smiles  at  all 
that  j-ou  can  do  against  him.  To  him  the  clank- 
iug  of  these  chains  is  the  sweet  music  of  his  tri 
umph.  The  eiforts  of  the  prosecution  and  its 
bitter  witnesses  to  convict  him  are  but  the  con 
firmation  of  his  glory.  The  power  and  majesty 
of  the  Government  brought  upon  his  head  seem 
but  clear  and  pleasant  praises  of  his  deed.  He 
lives  in  that  land  of  imagination  where  it 
seems  to  him  legions  of  the  souls  of  Southern  sol 
diers  wait  to  crown  him  as  their  chief  com 
mander.  He  sits  here  like  a  conqueror;  for 
four  weeks  he  has  held  his  head  erect  when  all 
others  have  quailed;  he  meets  the  stare  of  cu 
riosity  as  a  king  might  face  his  subjects;  he 
keeps  his  state  even  in  his  cell,  and  the  very 
keepers,  in  admiration,  acknowledge  him  their 
master.  Now,  I  know  I  dare  not  call  him 
mad — the  doctors  have  forbidden  it.  I  -might 
say  that  if  ever  man  fell  within  that  definition 
of  Chief-Justice  Shaw  of  insanity,  "A  very 
common  instance  is  where  a  person  fully  be 
lieves  the  act  he  is  doing  is  done  by  the  imme 
diate  command  of  God,  and  he  acts  under  the 
delusive  but  sincere  belief  that  what  he  is  do 
ing  is  by  command  of  a  superior  power,  which 
supersedes  all  human  laws  and  the  laws  of  na 
ture,''  this  is  the  man.  But  the  doctors  have 
said  he  is  not  insane,  and  though  he  fills  the 
legal  definition  he  does  not  fill  the  medical,  and, 
therefore,  I  can  not  hope  that  you  will  hold  him 
insane. 

But  I  appeal  from  medical  definitions  and 
from  legal  definitions  to  your  good  sense,  and 
I  ask  you  to  explain  for  me  the  riddle  of  this 
man's  conduct  in  any  other  way  than  that  he, 
is  a  political  fanatic;  a  monomaniac  on  the1 


subject  of  his  duty — call  him  sane  or  insane— 
yet  one  who  is  responsible  only  to  that  God 
from  whom  he  derives  his  commandments.  Be 
fore  another  tribunal,  where  all  his  previous 
life  might  be  inquired  into,  and  where  time 
would  be  given  for  all  this  mystery  to  be  un 
raveled,  I  do  not  hesitate  to  say  I  could  con 
vince  the  judges  beyond  a  doubt  that  he  is  no 
more  responsible  for  what  he  has  done  to  the 
laws  of  the  United  States  than  a  Chinaman 
whom  custom  and  religion  give  the  right  to 
strangle  his  daughters.  You  have  not  the 
time,  and  I  must  end  the  inquiry.  But  as  you 
are  sworn  to  try  this  man  on  your  consciences, 
so  I  charge  you  to  give  him  the  benefit  of  his. 
Gentlemen,  when  I  look  at  the  prisoner,  and 
see  (as  it  has  been  my  duty  for  four  weeks  to 
see)  the  calm  composure  with  which  he  has 
gone  through  the  horrors  of  this  trial ;  the 
cheerful  and  firm  fortitude  with  which  he  has 
listened  to  the  evidence  against  him,  and  with 
which  he  has  endured  the  gaze  of  the  public, 
as  well  as  the  ignominy  of  fetters;  the  frank 
and  honest  way  in  which  he  speaks  of  his 
crime,  as  a  thing  revolting  in  itself,  but  due  to 
a  cause  which  he  thinks  holy  ;  and,  more  than 
all,  the  settled  conviction,  which  robs  the  trial 
of  all  terrors,  that  he  has  but  obeyed  the  voice 
of  custom,  education,  and  conscience ;  and  the 
calm  serenity  with  which  he  regards  all  pains 
that  men  can  inflict  upon  him  as  contemptible, 
and  part  of  his  duty  to  endure,  I  can  not  help  be 
ing  proud — though  blood  is  on  his  hands — that 
such  fortitude,  unparalleled  in  history,  is  the 
growth  of  American  soil ;  and  I  can  not  help 
wishing  that  throughout  all  the  coming  vicissi 
tudes  of  life,  in  all  perplexities  and  doubts,  on 
all  occasions  of  right  and  wrong,  in  all  miscon 
structions  and  trials,  I  may  have  so  cheering, 
so  brave,  so  earnest  a  conviction  that  I  have 
done  my  duty. 

And  what  is  this  duty?  What  is  this  doing 
right?  Ask  the  Indian,  as  he  returns  to  his 
wigwam,  laden  with  the  dripping  scalps  of  the 
dispossessors  of  his  soil,  why  he  has  done  it, 
and  he  will  answer  you,  with  a  flourish  of  .his 
tomahawk  and  his  face  turned  toward  Heaven, 
that  he  is  doing  right — the  Great  Spirit  has 
commanded  it,  Ask  the  Hindoo,  as  he  disem 
bowels  some  English  officer  by  the  Ganges,  and 
riots  in  his  blood,  the  reason  of  his  crime,  and 
he  will  tell  you  it  is  his  duty,  he  is  doing 
right — the  Brahmins  have  decreed  it.  Consult 
the  records  of  Vendee,  and  see  why  Charette 
and  Gastou  murdered  the  Republican  soldiery 
in  ambuscades  and  thickets,  and  you  will  find 
they  entered,  at  the  bar  of  the  Parisian  Court, 
the  plea  that  they  were  doing  right;  it  was 
their  duty.  Now  go  through  the  devastated 
South ;  speak  with  a  few  of  the  five  millions, 
and  ask  them  why  they  have  thirsted  for  and 
taken  Northern  blood  in  secret  places,  mur 
dered  stragglers,  waylaid  orderlies,  and  killed 
by  stealth,  and  they  will  answer  you,  pointing 
to  the  charred  remains  of  some  ancestral  home 
and  some  neighboring  hill  dotted  with  graves. 
Because  it  was  our  duty  ;  because  we  felt  bound 
in  conscience  to  do  it. 

Let  us  not  undervalue  the  force  of  conscience. 
It  is  man's  sole  director,   his  highest  judge,  his 


316 


THE    CONSPIRACY   TRIAL. 


last  resort.  Without  it  he  is  but  an  erring  wan 
derer,  tossed  by  every  wind  of  passion,  inter 
est,  and  caprice.  With  it,  his  course  is  as  cer 
tain  and  regular  as  the  stars.  In  labor  it 
cheers  him  ;  in  pleasure  it  restrains  him  ;  to  all 
manner  of  good  it  prompts  him ;  from  all  man 
ner  of  evil  it  defends  him.  In  peace  it  teaches 
him  to  labor;  in  war  to  fight;  for  religion  it 
tells  him  to  fear  God;  for  his  country  it  says, 
protect  and  defend  it;  for  himself  it  says,  thy 
country,  thy  home,  thy  friends  first,  and  thyself 
last.  It  is  this  spark  of  heavenly  fire  which 
has  supported  martyrs  at  the  stake ;  which  has 
sustained  good  men  on  the  scaffold ;  which 
brought  liberty  and  preserved  it  in  this  land 
for  you  and  me  and  all  of  us.  Let  us,  then, 
respect  it,  even  when  it  speaks  in  a  voice  which 
we  can  not  understand.  Let  us  honor  it  as 
the  same  voice  which  directs  us,  even  when  it 
directs  others  to  a  grievous  fault.  We  are  but 
men.  The  same  God  who  created  us  all,  may 
reconcile  all  that,  and  find  in  our  difference 
but  ignorance  on  the  one  side  and  ignorance 
on  the  other.  And  if  we  dare  to  judge  the  dic 
tates  of  conscience,  do  we  not  arrogate  to  our 
selves  the  prerogatives  of  the  Sovereign  Law 
giver  of  the  Universe,  who  gave  the  rule, 
"Judge  not,  that  ye  be  not  judged?"  Therefore, 
considering  that  we  have  the  limit  set,  and  that 
we  can  not  go  beyond  without  becoming  in 
turn  transgressors,  let  us  leave  that  cause  with 
Him  who  measures  the  conduct  of  men  by  no 
standard  of  success,  but  by  obedience  to  the 
invariable  dictates  of  conscience.  For  us  it  is 
enough  that  we  are  weak  judges  of  weak  men. 
If  we  were  beasts,  unconscious  of  the  sacred 
limits  of  right  and  wrong,  we  might  excuse 
him;  if  we  were  Gods  and  superior  to  destiny, 
we  might  destroy  him ;  but  as  we  are  men  who 
know  our  duties,  but  also  our  weakness,  often 
seek  good  but  do  evil,  therefore  let  us  do  the 
work  of  man  to  man — punish  and  reform  him. 
VII.  Gentlemen,  I  have  done  with  narrative 
and  reflections.  We  now  know  that  this  Flor 
ida  boy  is  not  a  fiend,  but  an  object  rather  of 
compassion.  We  now  know  that  slavery  made 
him  immoral,  that  war  made  him  a  murderer, 
and  that  necessity,  revenge,  and  delusion  made 
him  an  assassin.  We  now  know  that  in  all 
regards  he  is  like  us,  only,  that  he  was  taught 
to  believe  right  what  we  were  taught  to  believe 
wrong;  and  that  if  we  had  been  taught  in  his 
school,  we  would  be  like  him,  and  if  he  had  been 
taught  in  ours,  he  would  be  like  us.  We  know 
that,  from  his  point  of  view,  he  justifies  the 
murder  of  our  Secretary  of  State;  we  know 
that,  from  our  standpoint,  we  would  gladly 
have  seen,  for  four  years,  the  death  of  the  rebel 
Secretary  of  State.  We  know  that  we  were  on 
the  side  of  the  Government,  because  we  were 
born  North;  we  know  that  he  was  against  it, 
because  he  was  born  South ;  and  that  had  we 
been  born  South  we  would  have  been  in  his 
place,  and  had  he  been  born  North  he  would  be 
incurs.  We  know,  also,  that  all  the  enemy 
desired  the  death  of  the  President,  and  that  he 
surpassed  them  only  in  courage;  and  that  if 
w<?  forgive  them  who  killed  our  brothers, 
we  must,  in  consistency,  forgive  him  who 
tried  to  kill  Mr.  Seward,  because  he  thought 


Mr.    Seward    guilty    of  murdering   his  broth 
ers. 

We  know,  further,  that  this  man  desires  to 
die,  in  order  to  gain  the  full  crown  of  martyr 
dom;  and  that,  there-fore,  if  we  gratify  him,  he 
will  triumph  over  us  ;  but  if  we  spare  him,  we 
will  triumph  over  him.  We  know,  also,  that 
the  public  can  gain  nothing  by  his  death  from 
the  example  ;  for  if  he  die  as  he  lived,  there 
will  be  more  anxious  to  emulate  his  bravery, 
as  Adam  Luc,  a  deputy  from  Mentz,  who,  on 
the  death  of  Corday,  fired  with  admiration, 
wrote  to  the  tribunal  requesting  to  die  like 
Charlotte  Corday,  while  the  multitude  exclaimed: 
"She  is  greater  than  Brutus."  But  if  he  is 
suffered  to  live,  he  will  receive  the  worst  pun 
ishment — obscurity — and  the  public  will  have 
nothing  to  admire.  AVo  also  know,  and  we 
can  not  consider  it  too  much,  that  he  has  killed 
no  man,  and  that  if  he  be  put  to  death  we  shall 
have  the  anomaly  of  the  victim  surviving  the 
murderer;  and  that,  under  the  laws,  this  man 
can  be  punished  only  for  assault  and  battery 
with  intent  to  kill,  and,  therefore,  imprisoned. 
We  know,  also,  that  we  are  at  the  end  of  a  civil 
war,  a  time  when  it  is  desirable  there  should 
be  no  farther  mention  or  remembrance  of  fra 
ternal  strife.  If  we  put  this  man  to  death,  he 
will  live  forever  in  the  hearts  of  his  comrades, 
and  his  memory  will  forever  keep  our  brethren 
from  us.  If,  moreover,  we  put  him  to  death,  we 
will  show  that  war  is  still  in  our  hearts,  and 
that  we  are  only  content  to  live  with  them  be 
cause  we  have  subdued  them. 

Finally,  we  know  that  if  we  let  him  live  and 
teach  him  better,  we  show  the  whole  world  that 
this  war  was  carried  on  to  undeceive  a  deluded 
people  and  to  maintain  the  supremacy  of  the 
laws,  8.0  that,  now  that  the  laws  are  supreme, 
we  may  begin  with  reform;  but  if  we  put  him 
to  death  we  show  only  that  we  are  vindictive, 
arid  use  our  victory  only  to  gratify  our  anger. 
Let  him,  then,  live.  His  youth  asks  it,  frater 
nity  asks  it,  the  laws  ask  it,  our  own  sins  ask  it, 
the  public  good  demands  it.  Because  you  and 
I  taught  him  the  code  of  assassination  in 
slavery;  because  you  and  I  brought  about  a 
civil  war,  which  practiced  him  in  assassina 
tion  and  made  him  justify  it;  because  you  and 
I  spurned  him  from  us  when  he  sought  refuge 
with  us,  and  bade  him  destroy  himself,  ignobly, 
by  his  own  hand,  or  grandly,  by  assassination  ; 
because,  in  short,  you  and  I  have  made  this 
boy  what  he  is,  therefore,  lest  we  who  are  really 
ourselves  guilty  of  this  attempt  at  murder, 
should  perpetrate  a  real  murder,  let  him  live, 
if  not  for  his  sake,  for  our  own.  Take  from 
the  refugee  his  desperation,  and  you  have  the 
j  cavalryman;  take  from  the  cavalryman  his 
hate,  and  you  have  the  soldier  of  Hill ;  take 
from  the  soldier  his  martial  habits,  and  yon 
I  have  the  slave-holder;  take  from  the  slave- 
i  holder  his  slavery,  and  you  have  again  the 
i  pure  and  simple  child,  who,  four  years  ago, 
went  singing  in  innocence  over  the  land. 

Before    I    close,    one    word    from    myself.     I 
I  have   heretofore   spoken    of  the  prisoner  as  his 
counsel;  I  may  also   speak  of  him  in  my  char 
acter  as  a  man;   and  I    can   testify    that  in  the 
four  weeks'    acquaintance    I  have  had,  hearing 


ARGUMENT    OF   W.    E.    DOSTER. 


317 


him  converse  with  freedom  and  explain  all  his 
hecivt  thoughts,  in  spite  of  the  odious  crime 
with  which  he  is  charged,  I  have  formed  an 
estimate  of  him  little  short  of  admiration,  for 
his  honesty  of  purpose,  freedom  from  decep 
tion  and  malice,  and  courageous  resolution  to 
abide  by  the  principles  to  which  he  was  reared. 
I  find  in  him  none  of  that  obstinacy  which 
perseveres  in  crime  because  it  is  committed, 
and  hopes  to  secure  admiration  in  a  feigned 
consistency.  Neither  is  there  about  him  a 
false  desire  of  notoriety,  nor  a  cowardly  effort 
to  screen  himself  from  punishment;  only  one 
prominent  anxiety — that  is,  lest  people  should 
think  him  a  hired  assassin,  or  a  brute;  an  aver- 
sion  to  being  made  a  public  spectacle  of,  and 
a  desire  to  be  tried  at  the  hands  of  his  fellow- 
citizens. 

Altogether,  I  think  we  may  safely  apply 
to  him,  without  spurious  sympathy  or  exag 
geration,  the  words  which  were  said  of  Bru 
tus — 


"  This  was  the  noblest  Roman  of  them  all 
All  the  conspirators,  gave  only  he, 
Did  that  they  did  in  envy  of  great  Cassar  ; 
He  only,  in  a  general  honest  thought, 
And  common  good  to  all,  made  one  of  them. 
His  life  was  gentle,  and  the  elements 
So  mixed  in  him,  that  nature  might  stand  up 
And  say  to  all  the  world,  "  This  was  a  man/" 

I  commit  him,  then,  without  hesitation,  to 
your  charge.  You  have  fought  on  the  same 
fields,  and  as  you  have  never  been  wanting  in 
mercy  to  the  defeated,  so  I  know  you  will  not 
be  wanting  in  mercy  to  him.  You  have  all  com 
manded  private  soldiers,  and  as  you  could  esti 
mate  the  enthusiasm  of  your  own  men,  so  you 
will  know  how  to  estimate  the  enthusiasm  of 
those  who  fought  against  you.  The  lives  of  all  of 
you  have  shown  that  you  were  guided  in  all  per 
plexities  by  the  stern  and  infallible  dictates  of 
conscience  and  duty,  and  I  know  that  you  will 
understand  and  weigh  in  your  judgment  of  the 
prisoner,  dictates  and  duties  so  kindred  to  your 
own.  LEWIS  PAYNE. 


ON    THE 


LAW  AND  EVIDENCE  IN  THE  CASE  OF  DR.  SAM'L  A.  MUDD, 


BY 


THOMAS    EWING,    JR. 


May  it  please  the  Court:  If  it  bo  determined 
to  take  jurisdiction  here,  it  then  becomes  a 
question  vitally  important  to  some  of  these 
parties — a  question  of  life  and  death — whether 
you  will  punish  only  offenses  created  and 
declared  by  law,  or  whether  you  will  make  and 
declare  the  past  acts  of  the  accused  to  be 
crimes,  which  acts  the  law  never  heretofore 
declared  criminal:  attach  to  them  the  penalty* 
of  death,  or  such  penalty  as  may  seem  meet  to 
you ;  adapt  the  evidence  to  the  crime  and  the 
crime  to  the  evidence,  and  thus  convict  and 
punish.  This,  I  greatly  fear  may  be  the  pur 
pose,  especially  since  the  Judge  Advocate  said, 
in  reply  to  my  inquiries,  that  he  would  expect 
to  convict  " under  the  common  law  of  -war"  This 
is  a  term  unknown  to  our  language — a  quid 
dity — wholly  undefined  and  incapable  of  defi 
nition.  It  is,  in  short,  just  what  the  Judge 
Advocate  chooses  to  make  of  it.  It  may  cre 
ate  a  fictitious  <  rime,  and  attach  to  it  arbitrary 
and  extreme  punishment,  and  who  shall  gain 
say  it?  The  laws  of  war — namely,  our  Articles 
of  War — and  the  habitual  practice  and  mode 
of  proceeding  under  them,  are  familiar  to  us 
all;  but  I  know  nothing,  and  never  heard  or 
read  of  a  common  law  of  war,  as  a  code  or 
system  under  which  military  courts  or  com 
missions  in  this  country  can  take  and  exercise 
jurisdiction  not  given  them  by  express  legal 
enactment  or  constitutional  grant.  But  I  still 
hope  the  law  is  to  govern,  and  if  it  do,  I  feel 
that  my  clients  are  still  safe. 

I  will  now  proceed  to  show  you,  that  on  the 


clients  are  still  safe,  if  we  be  allowed  to  con 
strue  it  as  laivs  are  construed  by  co  rts  of  justice. 
But  I  will  show,  first,  that  Dr.  »ludd  is  not, 
and  can  r  t  possibly  be,  guilty  of  any  otfense 
known  to  J>e  law. 

1.  Not  f  treason.  The  overt  act  attempted 
to  be  alkged  is  the  murder  of  the  President. 
The  proof  is  conclusive,  that  at  the  time  the 
tragedy  was  enacted  Dr.  Mudd  was  at  his  res 
idence  in  the  country,  thirty  miles  from  the 
place  of  the  crime.  Those  who  committed  it 
are  shown  to  have  acted  for  themselves,  not  as 
the  instruments  of  Dr.  Mudd.  He,  therefore, 
can  not  be  charged,  according  to  law  and  upon 
the  evid  nee,  with  the  commission  of  this  overt 
act.  Th  re  are  not  two  witnesses  to  prove  that 
he  did  ommit  it,  but  abundant  evidence  to 
show  negatively  that  he  did  not. 

Chief  Justice  Marshall,  in  delivering  an 
opinion  of  the  Court  in  Burr's  case,  says : 
"Those  only  who  perform  a  part,  and  who  are 
leagued  in  the  conspiracy,  are  declared  to  be 
traitors.  To  complete  the  definition  both  cir 
cumstances  must  concur.  They  must  "per 
form  a  part"  which  will  furnish  the  overt  act, 
and  they  must  be  leagued  with  the  conspiracy." 
4  Or.,  474. 

Now,  as  to  Dr.  Mudd,  there  is  no  particle  of 
evidence  tending  to  show  that  he  was  ever 
leagued  with  traitors  in  their  treason  ;  that  he 
had  ever,  by  himself,  or  by  adhering  to,  and 
in  connection  with,  others,  leyicd  war  against 
the  United  States.  It  is  contended  that  he 
joined  in  compassing  the  death  of  the  Presi- 


part    of    one    of    my    clients — Dr.    Mudd — no  {  dent  (a  the  King's  death"1).  Foster,  p.  149,  speak- 


crime  known  to  the  law,  and  for  which  it  is 
pretended  to  prosecute,  can  possibly  have  been 
committed.  Though  not  distinctly  informed 
as  to  the  offense  for  which  the  Judge  Advocate 
claims  conviction,  I  am  safe  in  saying,  that 
the  testimony  does  not  point  to  treason,  and 
if  he  is  being  tried  for  treason,  the  proceed 
ings  for  that  crime  are  widely  departed  from. 
The  prosecution  appears  to  have  been  instituted 
and  conducted  under  the  proclamation  of  the 
Secretary  of  War,  of  April  20,  1865.  This 
makes  it  a  crime,  punishable  with  death,  to 
harbor  or  screen  Booth,  Atzerodt,  or  Herolcl, 
or  to  aid  or  assist  them  to  escape.  It  makes  it 
a  crime  to  do  a,  particular  act,  and  punishes  that 
crime  with  death.  I  suppose  we  must  take  this 
proclamation  as  law.  Perhaps  it  is  part  of  what 
the  Judge  Advocate  means  when  he  speaks  of 
the  "common  law  of  war."  If  this  be  so,  my 
318 


ing  of  the  treason  of  compassing  the  king's 
death,  says:  "From  what  has  been  said  it  fol- 
loweth,  that  in  every  indictment  for  this  spe 
cies  of  treason,  and  indeed  for  levying  war 
and  adhering  to  the  king's  enemies,  an  overt 
act  must  be  alleged  and  proved.''  4  6V.,  490. 

The  only  overt  act  laid  in  these  charges 
against  Mudd  is  the  act  of  assassination,  at 
which  it  is  claimed  he  was  constructively 
present  and  participating.  His  presence,  and 
participation,  or  procurement,  must  be  proved 
by  two  witnesses,  if  the  charge  be  treason  ;  and 
such  presence,  participation,  or  procurement, 
be  the  overt  act. 

Chief  Justice  Marshall,  in  Burr's  case  (Dall., 
500),  says  :  "  Collateral  points,  say  the  books, 
may  be  proved  according  to  the  course  of  the 
common  law ;  but  is  this  a  collateral  point  ? 
Is  the  fact  without  which  the  accused  does 


ARGUMENT    OF   THOMAS    EWING,    JR. 


319 


not  participate  in  the  guilt  of  the  assemblage, 
if  they  were  guilty  (or  in  any  way  in  the  guilty 
act  of  others),  a  collateral  point?  This  can 
not  be.  The  presence  of  the  party,  when 
presence  is  necessary,  being  part  of  the  overt 
act,  must  be  positive!}'  proved  by  two  wit 
nesses.  No  presumptive  evidence,  no  facts 
from  which  presence  may  be  conjectured  or 
inferred,  will  satisfy  the  Constitution  and  the 
law.  If  procurement  take  the  place  of  pres 
ence,  and  become  part  of  the  overt  act,  then 
no  presumptive  evidence,  no  facts  from  which 
the  procurement  may  be  conjectured  o**  in 
ferred,  can  satisfy  the  Constitution  and  the 
law.  The  mind  is  not  to  be  led  to  the  conclu 
sion  that  the  individual  was  present  by  a 
train  of  conjectures  or  inferences,  or  of  reason 
ing.  The,  fact  itself  must  be  proved  by  two  wit 
nesses,  and  must  have  been  committed  within 
the  district." 

2.  Not   of  murder.      For  the  law   is    clear, 
that,  in  cases  of  treason,  presence  at  the  com 
mission  of  the  overt  act  is  governed   by  the 
same  principle   as   constructive    presence    in 
ordinary  felonies,   and    has   no   other  latitude, 
greater  or  less,  except  that  in  proof  of  trea 
son  two  witnesses   are  necessary  to  the  overt 
act,  and  one  only  in  murder  and  other  felonies. 
"A  person  is  not  constructively  present  at  an 
overt  act  of  treason,  unless  he  be  aiding  and 
abetting  at  the  fact,  or  ready  to  do  so,  if  neces 
sary."      4  Or..    492.      Persons  not  sufficiently 
near  to    give    assistance    are  not   principals. 
And  although  an  act  be  committed  in  pursu 
ance  of  a  previous  concerted  plan,  those  who 
are  not  present,  or  so   near  as   to  be  able  to 
aiford  aid  and  assistance,  at  the  time  when  the 
offense  is  committed,  are  not  principals,  but 
accessories  before  the  fact.    Wharton  Am.  Orim. 
Law,  112  to  127. 

It  is,  therefore,  perfectly  clear,  upon  the 
law  as  enacted  by  the  Legislature  and  ex 
pounded  by  jurists,  that  Dr.Mudd  is  not  guilty 
of  participating  in  the  murder  of  the  Presi 
dent;  that  he  was  not  actually  or  construct 
ively  present  when  the  horrid  deed  was  done, 
either  as  a  traitor,  chargeable  with  it  as  an 
overt  act,  or  a  conspirator,  connected  as  a  prin 
cipal  felon  therewith. 

3.  The  only  other  crimes  defined  by  law  for 
the  alleged  commission,  of  which  the  Judge 
Advocate   may,  by  possibility,  claim  the  con 
viction  of  the  accused,  are:   1st.  The  crime  of 
treasonable  conspiracy,  which   is  defined  by  the 
law  of  21st  July,    1861,  and  made  punishable 
by  fine  not   exceeding  $6,000,   and   imprison 
ment  not  exceeding  six  years.     2d.  The  crime 
of  being  an  accessory  before,  or  after  the  fact  to 
the   crimes  of  murder,    and   of    assault   with 
intent  to  kill.     That  the  accused  is  not  guilty 
of  either  of  these  crimes,  will  be  clearly  shown 
in  the  discussion  of  the  evidence  which  follows. 

4.  Admitting  the  Secretary's  proclamation 
to  be  law,  it,  of  course,  either  supersedes  or 
defines   the  unknown    something   or    nothing 
which  the  Judge  Advocate  calls  "  the  common 
law  of  war."     If  so,    it  is  a  definite,  existing 
thing,  and  I  can  defend  my  clients  against  it; 
and  it  is  easy  to  show  that   Dr.  Mudd  is  not 
guilty  of  violating  that  proclamation.    He  did 


I  not,  after  the  date  of  the  proclamation,  sec  either 
!  of  the  parties  named  therein — dress  the  wound 
,  of  Booth  or  point  out  the  way  to  Herold — 
I  and  the  proclamation  relates  to  future  acts,  not 
to  past. 

5.  But  of  the  common  law  of  war,  as  distinct 
from  the  usages  of  Military  Courts,  in  carry 
ing  out  and  executing  the  Articles  of  War,  I 
know  nothing,  and  on  examining  the  books,  I 
find  nothing.  All  that  is  written  down  in 
books  of  law  or  authority  I  am,  or  ought  to  be, 
prepared  to  meet;  but  it  were  idle  and  vain  to 
search  for  and  combat  a  mere  phantom  of  the 
imagination,  without  form  and  void. 

I  now  pass  to  a  consideration  of  the  evidence, 
which  I  think  will  fully  satisfy  the  Court  that 
Dr.  Mudd  is  not  guilty  of  treasonable  conspir 
acy,  or  of  being  an  accomplice,  before  or  after 
the  fact  in  the  felonies  committed. 

The  accused  has  been  a  practising  physi 
cian,  residing  five  miles  north  of  Bryantown, 
in  Charles  county,  Maryland,  on  a  farm  of 
about  five  hundred  acres,  given  to  him  by  his 
father.  His  house  is  between  twenty-seven 
and  thirty  miles  from  Washington,  and  four  or 
five  miles  east  of  the  road  from  Washington  to 
Bryantown.  It  is  shown  by  Dr.  George  Mudd, 
John  L.  Turner,  John  Waters,  Joseph  Waters, 
Thomas  Davis,  John  McPherson,  Lewellyn 
Gardiner,  and  other  gentlemen  of  unimpeached 
and  unquestionable  loyalty,  who  are  in  full 
sympathy  with  the  Government,  that  he  is  a 
man  of  most  exemplary  character — peaceable, 
kind,  upright,  and  obedient  to  the  laws.  His 
family  being  slaveholders,  he  did  not  like  the 
anti-slavery  measures  of  the  Government,  but 
was  always  respectful  and  temperate  in  dis 
cussing  them,  freely  took  the  oath  of  alle 
giance  prescribed  for  voters  (Dr.  George 
Mudd),  supported  an  Union  candidate  against 
Harris,  the  secession  candidate,  for  Congress 
(T.  L.  Gardiner),  and  for  more  than  a  year  past 
regarded  the  rebellion  a  failure.  (Dr.  George 
Mudd.)  He  was  never  known  or  reported  to 
have  done  an  act  or  said  a  word  in  aid  of  the 
rebellion,  or  in  countenance  or  support  of  the 
enemies  of  the  Government. 

An  eifort  was  made,  over  all  objections  and 
in  violation,  I  respectfully  submit,  of  the  plain 
est  rules  of  evidence,  to  blacken  his  character 
as  a  citizen,  by  showing  that  he  was  wont, 
after  the  war  broke  out,  to  threaten  his  slaves 
to  send  them  to  Richmond  "to  build  batteries." 
But  it  will  be  seen  hereafter,  that  all  that  part 
of  the  testimony  of  the  same  witnesses,  which 
related  to  the  presence  of  Surratt  and  of  rebel 
officers  at  the  house  of  the  accused,  was  ut 
terly  false.  And  Dyer,  in  presence  of  whom 
Eglent  says  the  threat  was  made  to  him,  swears 
he  was  not  in  the  country  then,  and  no  such 
threat  was  ever  made  in  his  presence.  The 
other  colored  servants  of  the  accused,  Charles 
and  Julia  Bloycc,  and  Betty  and  Frank  Wash 
ington,  say  they  never  heard  of  such  threats 
having  been  made;  and  J.  T.  Mudd  and  Dr. 
George  Mudd,  and  his  colored  servants  Charles 
and  Julia  Bloyce,  and  Betty  and  Frank  Wash 
ington,  describe  him  as  being  remarkably 
easy,  unexacting  and  kind  to  all  about  him — 
slaves  and  freemen. 


320 


THE    CONSPIRACY    TRIAL. 


From  this  brief  reference  to  the  evidence  of  j  the  neighborhood,  after   the   purchase  of  the 
the  character  of  the  accused,  I  pass  to  a  con- (horse  and  before  the  assassination. 
sideration  of  the  testimony  adduced  to  prove  j      2d.  Mary    Mudd   says    she    saw    Booth    one 
his  connection  with  the  conspiracy.  |  Sunday  in  November  at  church,  in  Dr.  Queen's 

And,  first,  as  to  his  acquaintance  with  Booth.  I  pew,  and  with  his  family,  and  that  she  heard 
J.  C.  Thompson  says,  that  early  in  November   of  his  being  at  the  house  of  her  brother,  the 

accused,  on  that  visit,  but  did  not  hear  that  he 


last  Booth  went  to  the  house  of  witness'  father- 
in-law,  Dr.  William  Queen,  four  or  five  miles 
south  of  Bryantown,  and  eight  or  ten  from  Dr. 
Mudd's,  and  presented  a  letter  of  introduc 
tion  from  a  Mr.  Martin,  of  Montreal,  who  said 
he  wanted  to  see  the  county.  It  does  not  ap 
pear  who  Martin  was.  Booth  said  his  busi- 


stayed  all  night;  and  that  on  the  same  visit 
he  bought  the  horse  of  Gardiner.  She  lives  at 
her  father's,  on  the  farm  adjoining  that  of 
accused,  and  was  at  his  house  two  or  three 
times  a  week,  and  saw  him  nearly  every  day 


on  his  visits  to  his  mother,  who  was  an  invalid, 

ness  was  to  invest  in  land  and  to  buy  horses,   and  whose  attending  physician  he  was;  and 
He  went  with  Dr.  Queen's  family  to  a  church  I  never  saw  or  heai'd  of  Booth,  except  on  that 


next  day,  in  the  neighborhood  of  Bryantown, 
and  was  there  casually  introduced,  before  ser 
vice,  by  Thompson,  to  the  accused.  After 
service  Booth  returned  to  Queen's  house,  and 
stayed  until  the  next  morning,  when  he  left. 
While  at  Queen's,  he  made  inquiries  of  Thomp 
son  as  to  horses  for  sale,  the  price  of  lands, 
their  qualities,  the  roads  to  Washington, 
and  to  the  landings  on  the  Potomac ;  and 
Thompson  told  him  that  the  father  of  Dr.  Sam 
uel  Mudd  was  a  large  landholder,  and  might 
sell  part  of  his  land.  On  Monday  morning, 
after  leaving  Dr.  Queen's,  Booth  came  by  the 
house  of  the  accused,  who  went  with  him  to 
the  house  of  George  Gardiner,  to  look  at  some 
horses  for  sale.  The  accused  lives  about  one- 
quarter  of  a  mile  from  Gardiner's  (Mary 
Mudd,  Thomas  L.  Gardiner),  and  on  the  most 
direct  road  to  that  place  from  Dr.  Queen's, 
through  Bryantown.  (Mary  Mudd,  Hardy.) 
There  Booth  bought  the  one-eyed  saddle-horse 
which  he  kept  here,  and  which  Payne  rode 
after  the  attempted  assassination  of  Mr.  Sew- 
ard.  Mudd  manifested  no  interest  in  the 
purchase,  but  after  it  was  made  Booth  di 
rected  the  horse  to  be  sent  to  Montgomery's 
Hotel,  in  Bryantown,  and  Booth  and  the  ac 
cused  rode  oif  together  in  the  direction  of  the 
house  of  the  accused,  which  was  also  the 
direction  of  Bryantown.  Witness  took  the 
horse  to  Bryantown  next  morning,  and  deliv 
ered  him  in  person  to  Booth  there.  AVitness 
says  the  horse  was  bought  on  Monday ;  but  he 
thinks  in  the  latter  part  of  November;  though 
he  says  he  is  "one  of  the  worst  hands  in  the 
world  to  keep  dates.'/ 

Thompson  further  says,  that  after  Booth's 
first  introduction  and  visit  to  Dr.  Queen's, 
"  he  came  there  again,  and  stayed  all  night, 
and  left  very  early  next  morning.  I  think  it 
was  about  the  middle  of  December  following 
his  first  visit  there." 

There  is  nothing  whatever  to  show  that 
Mudd  saw  Booth  on  this  second  visit,  or  at  any 
other  time,  in  the  country,  prior  to  the  assas 
sination  ;  but  a  great  deal  of  evidence  that  he 
never  was  at  Mudd's  house,  or  in  his  immedi 
ate  neighborhood,  prior  to  the  assassination, 
except  once,  and  on  his  first  visit.  I  will  refer 
to  the  several  items  of  testimony  on  this 
point. 

1st.  Thomas  L.  Gardiner  says  he  was  back 
and  forth  at  Mudd's  house,  sometimes  every 
day,  and  always  two  or  three  times  a  week, 


one  occasion,  before  the  assassination. 

3d.  Fanny  Mudd,  sister  of  the  accused,  liv 
ing  with  her  father,  testifies  to  the  same  effect. 

4th.  Charles  Bloyce  was  at  the  house  of  the 
accused  Saturday  and  Sunday  of  each  week 
of  last  year  until  Christmas  Eve  (except  six 
weeks  in  April  and  May),  and  never  saw 
or  heard  of  Booth's  being  there. 

5th.  Betty  Washington  (colored)  lived  there 
from  Monday  after  Christmas  until  now,  and 
never  saw  or  heard  of  Booth  there  before  the 
assassination. 

Oth.  Thomas  Davis  lived  there  from  9th  of 
January  last.  Same  as  above. 

Nor  is  there  any  evidence  whatever  of 
Booth's  having  stayed  all  night  with  the  accused 
on  the  visit  when  the  horse  was  bought  of 
Gardiner,  or  at  any  other  time,  except  that  of 
Col.  Wells,  who  says,  that  after  Mudd's  arrest, 
uhe  said,  in  answer  to  another  question,  that 
he  met  Booth  sometime  in  November.  I  think 
he  said  he  was  introduced  by  Mr.  Thompson,  a 
son-in-law  of  Dr.  Queen,  to  Booth.  I  think 
he  said  the  introduction  took  place  at  the 
chapel  or  church  on  Sunday  morning;  that, 
after  the  introduction  had  passed  between 
them,  Thompson  said,  Booth  wants  to  buy 
farming  lands;  and  they  had  some  little  con 
versation  on  the  subject  of  lands,  and  then 
Booth  asked  the  question,  whether  there  were 
any  desirable  horses  that  could  be  bought  in 
that  neighborhood  cheaply;  that  he  mentioned 
the  name  of  a  neighbor  of  his  who  had  some 
horses  that  were  good  travelers ;  and  that  he 
remained  with  him  that  night,  I  think,  and  the  next- 
morning  purchased  one  of  those  horses.''  Now,  it 
will  be  recollected  that  Thompson  says  Booth 
stayed  at  Dr.  Queen's  on  that  visit  Saturday 
night  and  Sunday  night,  and  Thomas  L.  Gar 
diner  says  the  horse  was  bought  Monday  morn 
ing.  So  that,  if  Col.  Wells  is  correct  in 
recollecting  what  Mudd  said,  then  Thompson 
must  be  wrong.  It  is  more  probable  that 
Thompson  is  right,  as  to  Booth's  having  spent 
Sunday  night  at  Queen's.  Thompson's  testi 
mony  is  strengthened,  too,  by  that  of  Mary 
Mudd,  Fanny  Mudd,  and  Charles  Bloyce,  who 
would,  in  all  probability,  have  heard  the  fact 
of  Booth  spending  Sunday  night  at  the  house 
of  the  accused,  had  he  done  so;  but  they  did 
did  not  hear  it. 

It  is  here  to  be  observed,  that  though  the 
accused  was  not  permitted  to  show,  by  Booth's 
declarations  here,  that  he  was  contemplating 


and  never  heard  of  Booth  being  there,  or  in  |  and  negotiating  purchases  of  lands  in  Charles 


THE    CONSPIRACY   TRIAL. 


321 


county,  yet  evidence  was  admitted  as  to  his 
declarations  made  there  to  that  effect.  Dr. 
Bowman,  of  Bryantown,  says  that  Booth  nego 
tiated  with  him,  on  one  of  these  visits,  for  the 
purchase  of  his  farm,  and  also  talked  of  buy 
ing  horses.  And  a  few  days  after  witness 
had  negotiated  with  Booth  for  the  sale  of  his 
farm,  he  met  Dr.  Mudd,  and  spoke  of  the 
negotiation  with  Booth,  and  Mudd  said,  "  Why 
that  fellow  promised  to  buy  my  land."  It  is  also 
shown  by  Dr.  Blanford,  Dr.  Bowman,  M.  P. 
Gardiner,  and  Dyer,  that  Mudd,  for  a  year 
past,  wanted  to  sell  his  land,  and  quit  farm 
ing. 

This,  then,  is  all  that  is  shown  of  any  meet 
ing  between  Mudd  and  Booth  in  that  country 
before  the  assassination— a  casual  introduc 
tion  at  church  on  Sunday  in  November — Booth 
going  next  morning  to  Mudd's,  talking  of 
buying  his  farm,  and  riding  with  him  a  quar 
ter  of  a  mile  to  a  neighbor's  to  buy  a  horse, 
and  their  going  off  together  toward  Mudd's 
and  Bryantown,  where  the  horse  was  deliv 
ered  to  Booth  next  morning. 

We  will  now  turn  to  consider  the  evidence 
as  to  the  accused's  acquaintance  with  John  H. 
Surratt.  If  he  knew  Surratt  at  all,  the  fact  is 
not  shown  by,  nor  inferable  from,  the  evi 
dence.  Miss  Surratt  was  educated  at  Bryan- 
town,  before  the  war,  and  her  family  lived  at 
Surrattsville,  and  kept  the  hotel  there  (which 
is  on  the  road  from  Dr.  Mudd's  house  to  Wash 
ington),  until  they  removed,  in  October  last, 
to  a  house  on  PI  street,  in  this  city,  where  they 
have  since  resided.  (Miss  Surratt,  Holahan, 
Weichmann).  Dr.  Mudd  probably  had  met 
Surratt  at  the  hotel  at  Surrattsville,  or,  before 
the  war,  at  Bryantown,  while  his  sister  was  at 
school;  but  it  is  not  shown  by  credible  testi 
mony  that  he  knew  him  at  all.  Let  us  exam 
ine  the  evidence  on  this  point. 

1st.  Mary  Simms,  formerly  Dr.  Mudd's  slave, 
says  that  a  man  whom  Dr.  and  Mrs.  Mudd 
called  Surratt  was  at  Mudd's  house  from  almost 
every  Saturday  night  until  Monday  night 
through  the  latter  part  of  the  winter,  and 
through  the  spring  and  summer  of  last  year 
until  apples  and  peaches  were  ripe,  when  she 
saw  him  no  more;  and  that  on  the  last  of  No 
vember  she  left  Dr.  Mudd's  house.  That  he 
never  slept  in  the  house,  but  took  dinner  there 
six  or  seven  times.  That  Andrew  Gwynn,  Ben 
nett  Gwynn,  Capt.  Perry,  Lieut.  Perry,  and 
Capt.  White,  of  Tennessee,  slept  with  Surratt 
in  the  pines  near  the  spring,  on  bed-clothes 
furnished  from  Dr.  Mudd's  house,  and  that 
they  were  supplied  by  witness  and  by  Dr. 
Mudd  with  victuals  from  the  house.  That 
William  Mudd,  a  neighbor,  and  Rachel  Spen 
cer,  and  Albin  Brooke,  members  of  Mudd's 
household,  used  to  see  Surratt  there  then. 
She  says  that  the  lieutenants  and  officers  had 
epaulettes  on  their  shoulders,  gray  breeches 
with  yellow  stripes,  coat  of  same  color  and 
trimming.  Their  horses  were  kept  in  Dr. 
Mudd's  stable,  by  Milo  Simms. 

2d.  Milo  Simms,  brother  of  Mary,  fourteen 
years  old,  formerly  slave  of  Dr.  Mudd,  left 
there  Friday  before  last  Christmas.  Saw  two 
or  three  men  there  last  summer,  who  slept  at  the 

21 


spring  near  Dr.  Mudd's  house.  Bedding 
taken  from  the  house ;  meals  carried  by  Mary 
Simms,  generally,  though  they  sometimes  ate  in 
the  house,  and  they  all  slept  at  the  spring, 
except  one  called  John  Surratt,  who  slept  once 
in  the  house.  Don't  say  how  long  they 
stayed.  It  was  in  "planting  tobacco  time." 
He  attended  their  horses  in  Dr.  Mudd's  stable. 

3d.  Rachel  Spencer,  slave  of  Dr.  Mudd  and 
cook  at  his  house,  left  him  early  in  January, 
1865;  saw  five  or  six  men  around  Dr.  Mudd's 
house  last  summer ;  slept  in  the  pines  near  the 
house,  and  were  furnished  with  meals  from  it. 
Were  dressed  in  black  and  blue.  Were  there 
only  a  week,  and  never  saw  them  there  before  or  since. 
She  heard  no  names  of  the  men  except  Andrew 
Gwynn  and  Watt  Boiuie.  That  Albin  Brooke 
lived  at  Dr.  Mudd's  then,  and  was  with  these 
men  occasionally. 

4th.  Elzee  Eglen,  formerly  Dr.  Mudd's  slave, 
left  him  20th  August,  1863;  saw  a  party  sleep 
ing  in  the  pines,  by  the  spring,  near  the 
house,  summer  before  last.  Knew  Andrew  Gwynn, 
and  he  was  one  of  them;  did  not  recollect  any 
other  names.  Mary  Simms  carried  them  meals, 
and  Milo  Simms  attended  the  horses  in  Dr. 
Mudd's  stable.  Some  wore  gray  clothes  with 
brass  buttons,  but  without  other  marks — some 
black  clothes.  Did  not  say  how  many  there 
were,  nor  how  long  they  stayed. 

5th.  Melvina  Washington,  formerly  Dr. 
Mudd's  slave,  left  him  October,  1863;  saw 
party  sleeping  in  the  pines  near  the  house 
summer  before  last;" victuals  furnished  from  the 
house.  Party  stayed  there  about  a  week,  and 
then  left.  Some  were  dressed  in  gray,  and 
some  in  short  jackets  with  little  peaks  behind, 
with  black  buttons.  She  saw  them  seven  or 
eight  times  during  one  week,  and  then  they 
all  left,  and  she  never  saw  any  of  them  at  any 
other  time  except  during  that  week.  That  An 
drew  Gwynn's  name  was  the  only  one  she 
heard;  that  Mary  Simms  used  to  tell  her,  when 
the  men  were  there,  the  names  of  others,  but 
she  had  forgotten  them. 

That  these  five  witnesses  all  refer  to  the 
same  party  of  men  and  the  same  year  is  cer 
tain,  from  the  fact  that  Elzee  Eglen  says  that 
Mary  Simm3  carried  the  party  he  describes  as 
being  there  in  the  summer  of  1863,  their 
victuals,  and  that  Milo  Simms  kept  their  horses 
in  the  stable,  and  Melvina  Washington  says 
Mary  Simms  used  to  tell  her  the  names  of  the 
party  which  she  describes  as  being  there  in 
1863;  and  also  from  the  fact  that  all  of  them, 
except  Milo  Simms,  named  Andrew  Gwynn  as 
being  one  of  the  party.  I  will  not  waste  the 
time  of  the  Court  in  pointing  oiit  to  it  in 
detail  the  discrepancies  in  their  evidence 
apparent  from  the  foregoing  synopsis  of  their 
testimony;  and  therefore,  only  calling  its 
attention  to  the  fact  that  all  of  these  wit 
nesses  were  living  with  Dr.  Mudd  during  and 
after  the  year  1861  (Dyer),  down  to  the  sev 
eral  dates  given  above,  when  they  respectively 
left,  I  will  proceed  to  show  from  the  evidence 
what  and  when  the  occurrences  really  were 
about  which  they  have  testified. 

1st.  Ben.  Gwynn  (named  by  Mary  Simms  as 
one  of  the  party)  says  : 


322 


ARGUMENT    OF    THOMAS    EWING,   JR. 


Q.  Will  you  state  \vhether  during  last  sum- '  4th.  Albin  Brooke,  referred  to  by  Mary 
mer,  in  company  with  Captain  White,  from  Ten- 1  Simms  and  Rachel  Spencer  as  having  seen  the 
nessee,  Captain  Perry,  Lieut.  Perry,  Andrew  '  party  they  describe  (and  by  Mary  Simms  aa 
Gwynn.  and  George  Gwynn,  or  either  of  them,  '  having  seen  Surratt  especially),  says  he  knows 
you  were  about  Dr.  Samuel  A.  Mudd's  house  for  j  Surratt.  having  met  him  in  another  county 
several  days  ?  A.  I  was  not.  I  do  not  know  any  j  once,  and  knew  Benjamin  Gwynn  and  Andrew 
of  the  parties  named,  and  I  never  heard  of  them,  '<  Gwynn.  but  that  he  never  saw  Surratt  with 
except  Andrew  Gwynn  and  George  Gwynn.  i^ny  of  the  men  named  by  Mary  Simms  at  Dr. 

Q.  Were  you  with  your  brothers,  Andrew  j  Mudd's,  nor  heard  of  his  having  ever  been 
Gwynn  and  George  Gwynn,  about  Dr.  Mudd's  j  there  ;  never  heard  of  Andrew  Gwynn  being 


house  last  year?  A.  No,  sir.  I  have  not  been 
in  Dr.  Mudd's  house  since  about  the  first  of 
November,  1861.  I  have  not  been  on  his 


back  from  Virginia  since  1861.  That  he  lived 
at  Dr.  Mudd's  from  the  1st  of  January  to  be 
tween  the  1st  and  the  15th  of  September  of 


place,  or  nearer  his  place  than  church,  since  [last  year,  and  was  at  the  stable  morning,  noon, 


about  the  Gth  of  November,  1861. 

Q.  Where  did  you  and  the  party  who  were 
with  you  near  Dr.  Mudd's  sleep?  A.  We  slept 
in  the  pines  near  the  spring. 

Q.  How  long  were  you  there?  A.  Four  or 
five  days.  I  left  my  neighborhood,  and  went 
down  there  and  stayed  around  in  the  neigh 
borhood — part  of  the  time  at  his  place,  and  part 
of  the  time  elsewhere.  He  fed  us  there — gave 
us  something  to  eat,  and  had  some  bed-cloth 
ing  brought  out  of  the  house.  That  was  all. 

He  further  said,  that  the  party  was  com 
posed  of  his  brother,  Andrew  Gwynn,  and 
Jerry  Dyer,  who,  on  the  breaking  out  of  the 
war,  were,  like  all  the  people  of  that  section, 
panic-stricken,  and  apprehending  arrest;  that 
he  came  up  to  Washington  on  the  10th  of  No 
vember,  gave  himself  up,  found  there  were  no 
charges  against  him,  took  the  oath,  and  went 


and  night,  each  day,  and  was  about  the  spring 
daily;  while  there,  never  saw  any  strangers' 
horses  in  the  stable,  nor  any  signs  about  the 
spring  of  persons  sleeping  there;  but  that, 
while  living  near  Dr.  Mudd's,  in  the  summer 
of  1861,  he  knew  of  Ben.  and  Andrew  Gwynn 
and  Dyer  sleeping  in  the  pines  there. 

5th.  Mrs.  Mary  Jane  Simms  boarded,  or  was 
a  guest,  at  Dr.  Mudd's  all  last  year,  except 
through  March ;  knew  Andrew,  Ben.  and 
George  Gwynn,  and  George  Surratt.  Never 
saw  or  heard  of  any  of  them  there,  nor  of  any 
of  them  sleeping  in  the  pines. 

6th.  Frank  Washington  (colored)  lived  at 
Dr.  Mudd's  all  lastyear;  knew  Andrew  Gwynn 
by  sight;  never  saw  or  heard  of  him  or  Sur 
ratt  (of  whom  a  photograph  was  shown  him), 
or  of  any  of  the  men  named  by  Mary  Simms? 
being  there,  or  of  any  men  being  there  in  uni- 


back  home.     That  John  H.  Surratt,  when  this   form;  at  the  stable  three  times  daily,  and  of- 
party  were  there,  was  at  college,  and  witness  |  ten  at  the  spring,  and  saw  no  strange  horses  in 


saw  him  in  Charles  county  then  or 
since.  That  his  brother,  Andreio  Gwi/nn,  went 
South  in  the  fall  of  1861,  and  was  never,  to 
his  knowledge,  back  in  that  county  but.  once 
since,  and  that  was  last  winter  sometime.  He 
corrected  his  statement  as  to  lolien  the  party 
were  there,  and  fixed  it  in  August,  1861. 

2d.  Jerry  Dyer,  brother-in-law  of  the  ac 
cused,  testifies  to  the  same  as  Ben.  Gwynn. 
Says  he  and  the  two  Gwynns  were  members 
of  companies  organized  by  authority  of  Gov 
ernor  Hicks  for  home  protection  in  1860;  were 
present  on  parade  in  Washington  at  the  inau 
guration  of  a  statue,  on  the  22d  of  February, 
1860.  When  the  war  broke  out  the  companies 
were  disbanded;  many  of  the  members  going 
South,  and  many  of  those  who  remained  in 
Charles  county  scattering  about  from  rumors 
of  arrests;  that  there  was  a  general  panic  in 
the  county  then,  and  almost  everybody  was 
leaving  home  and  "dodging  about;"  that 
while  he  and  the  two  Gwynns  slept  in  the 
pines  these  three  or  four  days,  Mary  Simms  car 
ried  them  victuals  from  the  house,  and  Milo 
Simms  attended  to  the  horses  in  Mudd's  stables ; 
that  they  were  dressed  in  citizens'  clothing; 
that  Andrew  Gwynn  went  South  in  the  fall 
of  1861;  witness  never  heard  of  his  being  back 
since;  that  Surratt  was  not  there  then,  nor, 
BO  far  as  he  knows,  since. 

3d.  William  Mudd,  a  near  neighbor  of  the 
accused,  named  by  Mary  Simms  as  having  seen 
the  party  she  describes,  says  he  saw  Benjamin 
Gwynn  there  in  1861,  but  saw  none  of  the  oth 
ers,  then  or  since. 


the  stable  ;  saw  no  signs  of  men  sleeping  abouf 
the  spring. 

7th.  Baptist  Washington,  carpenter,  at  work 
there  putting  up  kitchen,  etc.,  from  February 
till  Christmas  last  year,  except  the  month  of 
August;  same  as  above,  except  as  to  knowl 
edge  of  Andrew  Gwynn.  (Photograph  of  Sur 
ratt  shown  him.) 

8th.  Charles  Boyce  (colored),  at  Dr.  Mudd's 
through  every  Saturday  and  Sunday  all  last 
year,  except  from  10th  April  to  20th  May; 
same  as  Frank  Washington,  except  as  to 
knowing  Andrew  Gwynn. 

<Jth.  Julia  Ann  Bloyce  (colored  cook),  there 
from  early  in  July  to  23d  December,  1864; 
same,  substantially,  as  Frank  Washington; 
knew  Ben.  and  Andrew  Gwynn.  (Photograph 
of  Surratt  shown  witness.) 

10th.  Emily  Mudd  and  Fanny  Mudd  live  on 
adjoining  farm  to  Dr.  Mudd,  at  his  father's; 
at  his  house  almost  daily  for  years  ;  knew  of 
the  party  in  the  pines  in  1861,  composed  ol' 
Dyer  and  the  two  Gwynns;  knew  Andrew 
Gwynn  well ;  never  heard  of  his  being  back 
from  Virginia  since  1861,  nor  of  Surratt  ever 
being  at  Dr.  Mudd's,  nor  of  any  of  the  others 
named  by  Mary  Simms,  except  the  Gwynn?,  in 
1861. 

llth.  Henry  L.  Mudd,  jr.,  brother  of  the  ac 
cused,  living  at  his  father's;  same  as  above  as 
to  Surratt. 

None  of  the  five  witnesses,  whose  testimony 
has  been  shown  false  in  all  essential  parts  by 
the  evidence  of  the  twelve  witnesses  for  de 
fense,  referred  to  above  said  that  Surratt  was 


THE    CONSPIRACY   TRIAL. 


323 


one  of  the  party  sleeping  in  the  pines,  except .  {  either  being  there,  or  the  name  of  either  men- 
Mary  and  Milo  Simms.  These  two  witnesses 
are  shown  to  have  established  reputations  as 
liars,  by  the  evidence  of  Charles  Bloyce,  Julia 
Ann  Bloyce,  and  Frank,  Baptist  and  Betty 
Washington.  So  all  that  testimony  for  the 
prosecution,  of  the  "intelligent  contrabands," 
who  darkened  the  counsels  of  the  court  in  this 
case,  is  cleared  away.  The  only  part  of  it  at  all 
admissible  under  the  rules  of  evidence,  or  enti 
tled  to  the  consideration  of  the  Court,  was  that 


tioned  in  the  family. 

4th.  Weichmann  who  boarded  there  through 
last  winter,  never  heard  of  Mudd  being  at  the 
house. 

5th.  Judson  Jarboe  says  he  never  was  at 
Mrs.  Surratt's  house,  or  met  Dr.  Mudd  or  Miss 
Surratt  in  Washington  before  the  assassina- 


6th.  Mary  Mudd  says  Samuel  Mudd  was  at 
Frederick  College,  at  Fredericktown,  Mary- 
showing  Surratt  was  intimate  with  Mudd,  and  |  land,  in  December,  18oO,  and  was  not  at  home 
often  at  his  house  last  year  and  year  before;  during  the  collegiate  year,  beginning  in  Sep- 
and  that,  like  nearly  all  the  rest  of  their  tes- 1  tember  of  that  year;  and  Rev.  Dr.  Stonestreet, 


timony,  has    been  conclusively  shown    to  be 
false. 

Another  witness,  who  testifies  to  implicate 
Mudd  as  an  associate  of  Surratt.  is  William 
A.  Evans,  who  said  he  saw  Mudd  some  time 
last  winter  enter  a  house  on  H  street,  just  as 
Judson  Jarboe,  of  Prince  George's  county,  was 
going  out  of  it;  and  that  Jarboe  was  then 
shaking  hands  with  a  young  lady,  whom  wit 
ness  took  to  be  a  daughter  of  Mrs.  Surratt, 
from  her  striking  likeness  to  her  mother,  he 
having  known  or  seen  all  the  family  ;  and  that 
he  stopped  a  policeman  on  the  street,  and 
asked  whose  house  it  was,  and  he  said,  "  Mrs. 
Surratt's;"  and  that  he  drove  up  to  the  pave 
ment,  and  asked  also  a  lady  who  lived  nearby 
and  she  said  the  same.  He  said  this  house 
was  between  Eighth  and  Ninth,  or  Ninth  and 
Tenth — he  was  not  perfectly  certain  as  to  the 


streets,  but  wat 
ent  Office    and 


'•tain  it  was  between  the  Pat- 
the   President's.      Through  an 


hour's  cross-examination,  he  fought  by  equiv 
ocation,  or  pleading  delect  of  memory,  against 
fixing  any  circumstance  by  which  I  could 
learn,  directly  or  indirectly,  the  day  or  the 
month  when  it  occurred,  and,  finally,  he  could 
only  say  it  was  "sometime  last  winter."  Al 
though  his  attention  had  been  so  strongly  at 
tracted  to  the  house,  lie  first  said  it  was  on  one 
side  of  the  street  and  then  on  the  other;  and 
could  not  tell  whether  it  had  any  porch  or  any 
portico,  nor  describe  its  color,  nor  whether  it 
had  a  yard  in  front,  nor  whether  it  was  near 
the  center  of  the  square,  nor  describe  a  single 
house  on  either  side  of  the  same  square.  He 
said  he  knew  Dr.  Samuel  Mudd,  having  met 
him  first  at  Bryantown  church,  in  December, 
1850. 

Every  material  thing  he  did  say,  which  was 
susceptible  of  being  shown  false,  has  been  so 
shown. 

1st.  Mrs.  Surratt's  house  is  not  between  the 
Patent  Office  and  the  President's,  but  next  the 


corner  of  Sixth. 
Surratt.) 


(Weichmann,  Holahan,  Miss 


2d.  Miss  Surratt,  an  only  daughter,  says  she 
never  saw  or  heard  of  Samuel  Mudd  being  at 
her  mother's  house,  nor  heard  his  name  men 
tioned  in  the  family,  and  never  met  Judson 
Jarboe  there  or  elsewhere  before  the  assassin 
ation. 

3d.  Miss  Fitzpatrick,  who  boarded  at  Mrs. 
Surratt's  from  the  Oth  of  October  last  to  the 
assassination,  and  Holahan,  who  was  there 
from  the  first  week  of  February  last,  never 
saw  either  Mudd  or  Jarboe  there,  or  heard  of 


who  was  president  of  that  college  until  De 
cember  of  that  year,  testifies  the  accused  was 
then  entered  as  a  student  there,  and  could  not 
by  the  rules  of  the  college  have  gone  home. 

This  witness,  Evans,  boasted  often  to  the 
Court  that  he  was  a  minister  of  the  Gospel, 
and  reluctantly  admitted,  on  cross-examina 
tion,  that  he  was  also  one  of  the  secret  police. 
In  his  reckless  zeal  as  a  detective,  he  forgot 
the  ninth  commandment,  and  bore  false  wit 
ness  against  his  neighbor.  It  is  to  be  hoped 
his  testimony  that  he  is  a  minister  of  the  Gos 
pel  is  as  false  as  his  material  evidence.  I  feel 
bound  in  candor  to  admit,  however,  that  his 
conduct  on  the  stand  gave  an  air  of  plausibil 
ity  to  one  of  his  material  statements — that  for 
a  month  past  he  has  "been  on  the  verge  of 
insanity. 


I  have  now  presented  and  considered  all  the 
testimony  going  to  show  that  Mudd  ever  met 
Surratt  at  all,  and  all  that  he  ever  met  Booth, 
before  the  assassination,  and  after  the  first 
visit  Booth  made  to  Charles  county — except 
the  testimony  of  Weichmann,  which  I  will  now 
consider. 

That  witness  says  that  about  the  middle  of 
January  last,  he  and  Surratt  were  walking 
down  Seventh  street  one  night,  and  passed 
Booth  and  Mudd  walking  up  the  street,  and 
just  after  they  had  passed,  Mudd  called,  "  Sur 
ratt,  Surratt."  Surratt  turned  and  recognized 
Mudd  as  an  old  acquaintance,  and  introduced 
Mudd  to  witness,  and  then  Mudd  introduced 
Booth  to  witness  and  Surratt.  That  soon  after 
the  introduction,  Booth  invited  them  all  to  his 


room  at   the  National 
cigars   were   ordered. 


Hotel,  where  wine  and 
That  Dr.  Mudd,   after 


the  wines  and  cigars  came,  called  Booth  into 
the  passage,  and  they  stayed  there  five  to  eight 
minutes,  and  then  both  came  and  called  Surratt 
out,  and  all  three  stayed  there  about  as  long  as 
Mudd  and  Surratt  had  stayed,  both  interviews 
together  making  about  ten  to  twenty  minutes. 
On  returning  to  the  room,  Dr.  Mudd  seated 
himself  by  witness,  and  apologized  for  their 
private  conversation,  saying,  "that  Booth  and 
he  had  some  private  business  —  that  Booth 
wished  to  purchase  his  farm."  And  that,  sub 
sequently,  Booth  also  apologized  to  him,  giv 
ing  the  same  reason  for  the  private  conversa 
tion.  Booth  at  one  time  took  out  the  back  of 
an  envelope,  and  made  marks  on  it  with  a  pen 
cil.  "I  should  not  consider  it  writing,  but 
more  in  the  direction  of  roads  or  lines."  The 
three  were  at  the  time  seated  round  a  center 
table  in  the  middle  of  the  room.  "  The  room 


324 


ARGUMENT  OF  THOMAS  EWIXG,  JR. 


was  very  large — half  the  size  of  this  court 
room."  lie  was  standing,  when  this  was  done, 
within  eight  feet  of  them,  and  Booth  was 
talking  in  a  low  tone,  and  Surratt  and  Mndd 
looking  on  the  paper,  but  witness  heard  no 
word  of  the  conversation.  ^About  twenty  min 
utes  after  the  second  return  from  the  passage, 
and  after  a  good  deal  of  general  conversation, 
they  all  walked  round  to  the  Pennsylvania 
House,  where  the  accused  sat  with  witness  on 
a  lounge,  and  talked  about  the  war,  "ex 
pressed  the  opinion  that  the  war  would  soon 
be  over,  and  talked  like  a  Union  man."  Soon 
after  getting  there,  Booth  bid  the  accused  good 
night,  and  after  Booth  left,  witness  and  Sur 
ratt  followed,  at  about  half-past  ten  o'clock. 

It  will  be  observed  that  the  only  men  spo 
ken  of  by  this  witness  as  having  seen  the  ac 
cused  on  this  occasion  are,  Booth,  who  is  dead, 
and  Surratt,  who  is  a  fugitive  from  the  coun 
try.  So  there  is  no  one  who  can  be  called  to 
confirm  or  confute  his  statements,  as  to  the 
fact  of  these  men  being  together,  or  as  to  the 
character  of  the  interview.  But  there  was  one 
fact  about  which  he  said  he  could  not  be  mis 
taken,  and  by  means  of  which  his  evidence 
against  Mudd  is  utterly  overthrown.  That  is, 
he  alleges  the  meeting  was  about  the  middle 
of  January,  and  fixes  the  time  with  certainty 
by  three  distinct  circumstances  : 

1st.  He  made  a  visit  to  Baltimore  about  the 
middle  of  January,  and  near  the  date  of  this 
meeting. 

2d.  He  had,  before  the  meeting,  got  a  letter, 
which  he  received  on  the  16/A  of  January. 

3cl.  It  was  after  the  Congressional  holidays, 
and  Congress  had  resumed  its  session.  He  re 
collects  this  fact  of  itself,  and  is  confirmed  in 
his  recollection  by  the  fact  that  Booth's  room 
was  one  a  member  of  Congress  had  occupied 
before  the  holidays,  and  which  was  given 
Booth,  as  he  learned,  until  the  member,  who 
had  been  delayed  beyond  the  time  of  the  re 
assembling  of  Congress,  should  return.  Booth 
told  him  this. 

In  refutation  of  this  evidence,  we  have 
proved,  beyond  all  controversy,  that  Dr.  Mudd 
was  not  in  Washington  from  the  23d  of  Decem 
ber  to  the  "23d  of  March. 

On  the  23d  of  December  he  came  to  Wash 
ington  with  J.  T.  Mudd,  who  says  they  left 
their  horses  at  the  Navy  Yard,  and  went  into 
the  city  at  dark,  on  the  street  cars,  and  regis 
tered  at  the  Pennsylvania  House.  They  then 
went  out  and  got  supper  at  a  restaurant,  and 
then  went  to  the  Metropolitan  Hotel  and 
stayed  there  together  a  quarter  of  an  hour, 
and  then  to  the  National,  where  witness  met 
a  friend,  and  became  separated  in  the  crowd 
from  the  accused.  Witness  strolled  out  and 
went  back  to  the  Pennsylvania  House,  to 
which  accused  returned  in  a  few  minutes 
after  he  got  there.  He  saw  and  heard  no  one 
with  the  accused,  though  there  might  have  been 
persons  with  him  in  the  front  part  of  the 
room  (which  was  separated  from  where  wit 
ness  sat  by  open  folding  doors),  without  wit 
ness  seeing  them.  Witness  and  accused  then 
went  to  bed;  were  together  all  next  day; 
were  about  the  market  together,  and  at  the 


store  making  purchases ;  were  not  at  the 
National  Hotel,  and  left  the  city  about  one 
o'clock  in  the  afternoon  of  the  24th,  and  re 
turned  home  together.  Witness  never  saw 
Booth,  except  on  his  visit  to  Bryantown  in 
November.  We  have  shown  by  the  evidence 
of  Lucas,  Montgomery,  Julia  Bloyce  and  Jerry 
Mudd,  that  accused  came  here  on  that  visit  on 
a  sufficient  and  legitimate  business  errand — 
I  to  purchase  a  cooking  stove  and  other  articles, 
'  which  he  bought  here  then. 

On  the  23d  of  March,  Lewellyn  Gardiner 
said  accused  again  came  to  Washington  with 
him  to  attend  a  sale  of  condemned  horses,  but 
that  the  sale  did  not  occur  at  that  time.  They 
got  to  Washington  at  four  or  five  P.  M.,  left 
their  horses  at  Martin's,  beyond  the  Navy 
Yard,  and  went  about  looking  at  some  wagons 
for  sale,  and  went  then  to  the  Island  to  the 
house  of  Heni-y  Clark,  where  they  took  tea. 
They  spent  the  evening  at  Dr.  Allen's  playing 
whist ;  slept  together  that  night  at  Clark's, 
and  after  breakfast  next  morning  went  through 
the  Capitol,  looking  at  the  paintings  in  the 
Rotunda,  and  returned  to  Martin's  at  dinner, 
and  after  dinner  left  and  returned  home.  Ac 
cused  was  not  separated  from  or  out  of  sight 
of  \vitness  five  minutes  during  the  whole  visit, 
and  did  not  go  to  any  of  the  hotels  or  to  the 
post-office,  or  see  or  inquire  for  Booth.  Dr. 
Allen,  Clark,  Martin,  Thomas  Davis.  Mary 
Mudd,  Henry  Mudd  and  Betty  Washington 
confirm  witness  as  to  the  objects  or  incidents 
of  the  visit. 

On  the  llth  of  April,  three  days  before  the 
assassination,  while  Booth,  as  appears  by  the 
hotel  register,  was  at  the  National  in  this  city, 
accused  came  to  Giesboro  to  attend  the  sale  of 
Government  horses,  which  he  and  Lewellyn 
Gardiner  had  come  on  the  23d  of  March  to  at 
tend.  Though  in  sight  of  Washington,  he  did 
not  come  into  the  city,  but  took  dinner  at 
Martin's,  and  after  dinner  left  and  returned 
home.  On  this  visit  he  stayed  all  night  at 
Blanford's,  twelve  miles  from  the  city,  coining 
up,  but  not  returning.  (Lewellyn  Gardiner, 
Henry  L.  Mudd,  Dr.  Blanford,  Martin,  Davis, 
Betty  Washington,  Mary  Mudd.) 

On  the  26th  of  January,  he  went  with  his 
wife  to  the  house  of  his  neighbor,  George 
H.  Gardiner,  to  a  party,  and  stayed  till 
daylight.  (Betty  Washington,  Thomas  Davis. 
Mary  Mudd.)  Except  for  one  night  on  the  oc 
casion  of  each  of  those  four  visits — two  to 
Washington,  one  to  Giesboro,  and  one  to  Gard 
iner's — accused  was  not  absent  from  home  a 
night  from  the  23d  of  December  until  his  ar 
rest.  (Betty  Washington,  Thomas  Davis, 
Henry  L.  Mudd,  Mary  Mudd,  Frank  Washing 
ton.) 

After  the  evidence  for  the  defense  above  re 
ferred  to  had  been  introduced,  refuting  and  com 
pletely  overwhelming  Weichmann's  testimony 
and  all  inferences  as  to  Dr.  Mudd's  complicity 
with  Booth,  which  might  be  drawn  from  it,  a  new 
accuser  was  introduced  against  him  on  the 
same  point,  in  the  person  of  Marcus  P.  Norton, 
who  said  that  at  half-past  10  o'clock  on  the 
morning  of  the  3d  of  March,  as  he  was  prepar 
ing  his  papers  to  go  to  the  Supreme  Court  to 


THE    CONSPIRACY    TRIAL. 


325 


argue  a  motion  in  a  patent  case  there  pending, 
(which  motion  tlie  record  of  the  Court  shows  he 
did  argue  on  that  day),  a  stranger  abruptly  en 
tered  his  room  and  as  abruptly  retired,  saying 
he  was  looking  for  Mr.  Booth's  room  ;  and  though 
witness  never  saw  Dr.  Mudd  before  or  since,  until 
the  day  of  his  testifying,  he  says  that  stranger 
is  the  prisoner  at  the  bar.  He  could  not  tell  any 
article  of  the  stranger's  clothing  except  a  black 
hat,  Wm.  A.  Evtyis,  a  part  of  whose  evidence 
we  have  hereinbefore  considered,  comes  to  the  sup 
port  of  Norton,  by  saying  that  early  on  the  morn 
ing  of  either  the  1st,  or  2d,  or  3d  of  March  (wit 
ness  is  certain  it  was  one  of  those  three  days), 
Dr.  Mudd  passed  witness  on  the  road  from  Bry- 
aiitown  to  Washington,  a  few  miles  from  the 
city,  driving  a  two-horse  rockaway,  and  there 
was  a  man  in  with  him,  but  whether  a  black  or 
a  white  man  witness  could  not  recollect.  Fortu 
nately  for  the  accused,  the  1st  day  of  March  was 
Ash  Wednesday — the  first  day  of  Lent — a  relig 
ious  holiday  of  note  and  observance  in  the  com 
munity  of  Catholics  among  whom  he  lived.  For 
tunately  for  him,  too,  his  sister  Mary  was  taken 
ill  on  that  day,  and  required  his  medical  attend 
ance  (at  her  father's  house,  on  the  farm  adjoin 
ing  his  own,  thirty  miles  from  Washington)  each 
day,  from  the  2d  to  the  7th  of  March,  inclusive. 
By  the  aid  of  these  two  circumstances  we  have 
been  able  to  show,  by  Thomas  Davis,  that  accused 
was  at  home  at  work  on  the  28th  of  February — 
the  day  before  Ash  Wednesday ;  by  Dr.  Blan- 
ford,  Frank  Washington  and  Betty  Washington, 
that  he  was  there  at  work  at  home  on  the  1st  of 
March;  by  Mary,  Fanny,  Emily  arid  Henry  L. 
Mudd,  Betty  and  Frank  Washington  and  Thomas 
Davis,  that  he  was  there  on  the  2d,  3d,  4th  and 
5th  of  March,  at  various  hours  of  each  day.  At  or 
within  two  hours  of  the  time  when  Norton  says 
he  saw  the  accused  enter  the  room  at  the  National 
(half  past  10  A.  M.,  3d  of  March),  Mary,  Emily, 
Fanny  and  Henry  L.  Mudd,  Frank  arid  Betty 
Washington,  Thomas  and  John  Davis,  all  testify 
most  emphatically  to  having  seen  him  at  his 
house,  on  his  farm,  or  at  his  father's  house  ad 
jacent  to  his  own — six  hours'  ride  from  Wash 
ington  !  We  have  shown,  too,  by  Mary  Mudd, 
that  the  accused  has  always  worn  a  lead-coloi'cd 
hat  whenever  she  has  seen  him  this  year,  and 
that  she  has  seen  him  almost  daily;  and  by 
Henry  Mudd,  Dr.  Blunford  and  Mary  Mudd,  that 
neither  he  nor  his  father  owns  a  rockaway. 
Now,  Norton  either  saw  the  accused  enter  his 
room  on  the  morning  of  the  3d  of  March,  or  not 
at  all,  for  his  evidence,  clinched  as  to  the  date 
by  the  record  of  the  Supreme  Court,  excludes  the 
supposition  that  he  could  have  been  mistaken  as 
io  the  day.  Nor  can  these  eight  witnesses  for  the 
defense  be  mistaken  as  to  the  day,  for  the  inci 
dents  by  which  they  recollect  Mudd's  presence 
at  home,  fix  the  time  in  their  memories  exactly. 
With  all  this  evidence  before  the  Court,  it  can 
not  hesitate  to  hold  the  alibi  established  beyond 
nil  cavil. 

The  only  other  item  of  evidence  as  to  anything 
done  or  said  by  Dr.  Mudd,  or  by  anybody,  be 
fore  the  assassination,  tending  in  the  least  to 
show  him  implicated  in  the  conspiracy,  is  the 
evidence  of  Daniel  J.  Thomas,  who  says  that  sev 
eral  weeks  before  the  assassination  he  met  Mudd 


at  the  house  of  his  neighbor,  Downing,  and  there, 
in  the  course  of  conversation,  Mudd  said  (laugh 
ingly)  that  "  Lincoln  and  his  whole  Cabinet,  and 
every  Union  man  in  the  State  of  Maryland, 
would  be  killed  within  six  weeks.'1  Witness  said 
he  wrote  to  Col.  John  C.  Holland,  provost  mar 
shal  of  that  district,  at  Ellicott's  Mills,  before  the 
assassination,  advising  him  of  Mudd's  statement. 
But  Col.  Holland  says  he  got  a  letter  from  wit 
ness  about  that  time,  and  there  was  not  a  word 
of  the  statement  in  it,  nor  a  reference  to  the  ac 
cused,  nor  to  any  statement  by  anybody  about 
killing  anybody.  Thomas  says  he  told  his 
brother,  Dr.  Thomas,  of  the  declaration  before 
the  President  was  killed,  but  his  brother  says 
emphatically  he  did  not  tell  him  until  after 
Mudd's  arrest — the  boot  found  at  Mudd's  house 
having  been  named  in  the  same  conversation. 
Thomas  says  he  told  Mr.  Downing  about  it  be 
fore  the  assassination,  but  Downing  says  em 
phatically  he  did  not  tell  him  a  word  about  it  at 
any  time.  Downing  also  says  that  he  himself 
was  present  every  moment  of  the  time  Mudd  and 
Thomas  were  together  at  his  house,  and  heard 
every  word  said  by  either  of  them,  and  Mudd 
did  not  make  that  statement,  nor  refer  to  the 
President,  or  the  Cabinet,  or  the  Union  men  of 
Maryland,  at  all,  nor  say  a  word  about  anybody 
being  killed.  He  says,  however,  Mudd,  when 
Thomas  was  bragging  and  lying  about  being  a 
provost  marshal,  did  tell  him,  "he  was  a  jack," 
which  insult  was  doubtless  an  incentive  to  the 
invention  of  the  calumny.  But  it  was  not  the 
only  incentive.  Thomas  knew  that  if  that  lie 
could  be  palmed  oft'  on  the  Judge  Advocate  and 
the  Court  for  truth,  it  might  lead  to  Mudd's  ar 
rest  and  conviction  as  one  of  the  conspirators. 
He  had,  on  Tuesday,  before  Mudd's  arrest,  and 
before  this  lie  was  coined  and  circulated,  been 
posting  handbills,  containing  the  order  of  the 
War  Department  offering  liberal  rewards  for  any 
information  leading  to  the  arrest  of  Booth  s  ac 
complices,  and  he  then  doubtless  conceived  the 
idea  of  at  once  getting  reward  in  money  from 
the  Government  for  his  information,  and  revenge 
on  Mudd  for  his  insult  in  Downing's  house. 

That  he  gave  that  evidence  corruptly  is  shown 
by  Wm.  Watson,  John  R.  Richardson  and  Ben 
jamin  Naylor,  who  say  that  Thomas,  after  testi 
fying  against  Mudd,  went  to  see  them,  and  said 
that  "if  Dr.  Mudd  was  convicted  upon  his  testi 
mony,  he  would  then  have  given  conclusive  evidence 
that  he  gave  the  information  that  led  to  the  detection 
of  the  conspirator!  "He  then  asked  Mr.  Uenja- 
min  J.  Naylor  if  he  did  not  mention  to  him  and 
Gibbons,  before  the  killing  of  the  President,  the 
language  that  Dr.  Mudd  had  used.  Mr.  Naylor 
said  that  he  had  never  done  it  before  or  after!'1 
He  said  his  portion  of  the  reward  ought  to  be 
$10,000 — and  asked  me  (  Watson)  if  I  would  not, 
as  the  best  loyal  manin  Prince  George's  county, give 
him  a  certificate  of  hoiv  much  he  ought  to  be  entitled 
The  testimony  of  Richards,  and  of  Eli  J. 
Watson,  coupled  with  Thomas'  testimony  in  de 
nial  of  these  statements,  fill  the  record  of  infamy 
of  this  false  witness. 

To  accumulate  evidence  that  Thomas'  state 
ment  is  utterly  unreliable,  the  defense  brought 
over  twenty  of  his  neighbors,  who  testified  that 
be  could  not  be  believed  on  oath — among  whom 


326 


ARGUMENT    OF    THOMAS    EWING,    JR. 


were  Naylor,  Roby,  Richards,  Orme,  Joseph 
Waters,  John  Waters,  J.  F.  Watson,  Eli  Watson, 
Smith,  Baden,  Dickens,  Hawkins,  Monroe  and 
others,  of  undisputed  loyalty,  nearly  all  of  whom 
had  known  him  from  boyhood.  His  brother, 
Dr.  Thomas,  testifies  that  he  is  at  times  de 
ranged  ;  and  Dr.  George  Mudd  says  that  he  is 
mentally  and  morally  insane.  And,  although 
Thomas'  evidence  was  the  most  important  in  the 
case  against  Dr.  Mudd,  the  Judge  Advocate  has 
not  aeriously  attempted  to  sustain  him — has  not 
tried  to  show  that  he  ever  told  or  hinted  at  this 
story  to  anybody  before  the  assassination — and 
has  not  asked  one  of  the  scores  of  witnesses  for 
the  prosecution  in  attendance  from  Thomas 
neighborhood  a  question  as  to  his  reputation  for 
veracity — except  Wm.  Watson,  who  said  it  was 
decidedly  bad.  A  feeble  attempt  was  made  to 
sustain  him,  by  endeavoring  to  show  that  he  was 
a  zealous  supporter  of  the  Administration,  and 
that,  therefore,  the  general  voice  of  his  commu 
nity  was  against  him.  But  we  showed  that  he 
was  a  rebel  at  the  beginning  of  the  war,  and  an 
opponent  of  the  Administration  at  the  last  elec 
tion — and  then  the  Judge  Advocate  dropped  him  ! 

This  is  all  the  evidence  of  every  act  or  word 
done  or  said  by  any  body,  prior  to  the  assassi 
nation,  tending  in  the  remotest  degree  to  con 
nect  Mudd  with  the  conspiracy.  It  consists,  in 
large  part,  of  the  testimony  of  the  five  negi-oes,  as 
to  the  Confederate  officers  frequenting  Mudd's 
house  last  year  and  the  year  before — two  of 
them,  Milo  and  Mary  Simnis,  as  to  Surratt's  visit 
ing  his  house  last  year — of  Evans,  as  to  Mudd's 
going  to  Surratt's  house  last  winter — of  Evans 
and  Norton,  as  to  Mudd's  being  here  on  the  3d 
of  March — of  Weichmann,  as  to  the  interview 
between  Mudd,  Booth  and  Surratt,  about  the 
middle  of  January,  and  of  Thomas,  as  to  Mudd:s 
prediction  of  the  assassination  in  March.  I  ven 
ture  to  say  that  rarely  in  the  annals  of  criminal 
trials  has  the  life  of  an  accused  been  assailed  by 
such  an  array  of  false  testimony  as  is  exhibited 
in  the  evidence  of  these  nine  witnesses — and 
rarely  has  it  been  the  good  fortune  of  an  inno 
cent  man,  arraigned  and  on  trial  for  his  life,  to 
so  confute  and  overwhelm  his  accusers.  I  feel 
it  would  be  a  waste  of  time,  and  an  imputation 
on  the  intelligence  of  the  Court  to  delay  it  with 
fuller  discussion  of  the  evidence  of  these  wit 
nesses,  and  feel  sure  it  will  cast  their  testimony 
from  its  deliberations,  or  recollect  it  only  to  re 
flect  how  foully  and  mistakenly  the  accused  has 
been  assailed. 

Having  now  discussed  all  the  evidence  ad 
duced  that  calls  for  discussion,  or  may  by  possi 
bility  be  relied  on  as  showing  Mudd's  acquaint 
ance  with  Booth,  or  connection  with  the  con 
spiracy,  and  having,  I  think,  shown  that  there 
is  no  reliable  evidence  that  he  ever  met  Booth 
before  the  assassination  but  once  on  Sunday, 
and  once  the  day  following,  in  November  last,  I 
will  proceed  to  a  consideration  of  the  testimony 
relied  on  to  show  that  he  knowingly  aided  the 
escape  of  the  assassin. 

First.  Why  did  Booth  go  to  Dr.  Mudd's  and 
stop  there  from  daybreak  till  near  sundown  on 
his  flight?  I  answer,  because  he  had  a  broken 
leg,  and  needed  a  physician  to  set  it.  And  as 
to  the  length  of  the  stay,  the  wonder  is  he  was 


able  to  ride  oft"  on  horseback  with  his  broken  and 
swollen  limb  at  all— not  th:vt  lie  took  ten  hours' 
rest.  The  Court  will  observe  from  the  map  in 
evidence,  that  Booth,  taking  Surrattsville  in  his 
route  to  Pope's  creek,  opposite  Matthias  Point, 
where  he  crossed  the  Potomac  (Capt.  Doherty), 
traveled  at  least  eight  or  ten  miles  out  of  his  way 
to  go,  after  leaving  Surrattsville,  by  Dr.  Mudd's. 
(See  Dyer's  testimony.)  Would  he  have  gone 
that  far  out  of  his  route  to  the  Potomac  crossing 
if  he  had  not  broken,  his  leg?  Or  was  it  part  of 
his  plan  to  break  it  ?  Obviously,  he  could  not 
in  advance  have  planned  to  escape  by  crossing 
the  Patuxent,  nor  to  evade  his  pursuers  by  lying 
concealed  in  Charles  county,  within  six  hours' 
ride  of  Washington.  He  must,  as  a  sane  man, 
have  contemplated  arid  planned  escape  across 
the  Potomac  into  Virginia,  arid  thence  South  or 
abroad  ;  and  it  could  never  have  been  part  either 
of  the  plan  of  abduction,  or  of  that  of  assassina 
tion,  to  go  the  circuitous  route  to  a  crossing  of 
j  the  Potomac  by  Bryaritown  or  Dr.  Mudd's.  So 
that  the  fact  of  Booth  going  to  the  house  of  the 
accused  and  stopping  to  get  his  leg  set  and  to 
rest,  does  riot  necessarily  lead  to  any  conclusion 
unfavorable  to  the  accused. 

Booth  got  there,  with  Herold,  about  daybreak 
(Frank  Washington).  He  usually  wore  a  mus 
tache  (see  photograph),  but  he  then  wore  heavy 
whiskers,  and  had  his  face  muftied  in  a  shawl, 
so  as  to  disguise  him.  The  disguise  was  kept 
up  all  day.  (Col.  Wells.)  He  was  taken  to  a 
lounge  in  the  hall,  and  then  to  a  front  room  up 
stairs,  where  the  broken  bone  was  set,  where  a 
fee  of  $'2o  was  paid  for  the  service,  and  where, 
it  is  probable,  he  slept  most  of  the  day.  They 
represented  that  the  leg  had  been  broken  by  a 
fall  of  the  horse;  that  they  had  come  from  Bry- 
antown,  and  were  going  to  Parson  Wilmer's. 
After  breakfast  accused  went  to  his  field  to  work. 
Herold,  whom  Mudd  had  never  met  (Colonel 
Wells),  came  down  to  breakfast  and  dinner  with 
the  family,  and  after  dinner  he  and  Mudd  went 
off  together  to  the  house  of  Mudd's  father  to  get 
a  family  carriage  to  take  the  wounded  man  to 
the  house  of  Parson  Wilmer,  five  miles  off,  at 
Piney  Chapel.  (Lovett  Wells.)  Now,  can  any 
man  suppose  for  a  moment  that  Mudd,  at  this 
time,  had  the  slightest  suspicion  or  intimation  of 
the  awful  tragedy  of  the  night  before?  Could 
he,  knowing  or  suspecting  the  crime  or  the  crimi 
nal,  have  thus  recklessly  given  himself  up  to  ar 
rest  and  trial,  by  publicly  aiding  the  escape  of 
the  assassin?  Could  he  have  been  ready  to  ex 
pose  his  old  father  to  suspicion  by  thus  borrow 
ing  his  carriage,  which  would  have  been  noticed 
by  every  man,  woman  and  child  on  the  road,  to 
carry  off  the  assassin  ?  Impossible !  I  need 
nothing  more  of  the  Court  than  its  consideration 
of  this  fact,  to  clear  the  accused  of  all  suspicion 
of  having,  up  to  that  time,  known  or  suspected 
that  a  crime  had  been  committed  by  the  crippled 
stranger,  whom  he  was  thus  openly  and  kindly 
seeking  to  aid. 

But  the  carriage  could  not  be  got,  and  Mudd 
and  Herold  rode  off  toward  Bryantown  to  get 
one  there.  Col.  Wells  thinks  the  accused  told 
him  that  Herold  turned  back  when  getting  one 
and  a -half  miles  from  the  elder  Mudd's  house, 
saying  he  could  take  his  friend  off  on  horseback. 


THE    CONSPIRACY   TRIAL. 


327 


Betty  Briscoc  and  Eleanor  Bloyce,  however,  say 
they  saw  a  man  riding  toward  Bryantown  with 
the  accused,  who  turned  back  at  the  bridge  at 
the  edge  of  the  town. 

Mudd  made  some  purchases  of  calico  and  other 
articles,  and  heard  of  the  assassination.   (Bean.) 


toward  Bryantown  and  the  time  Herold 
returned  alone,  was  but  three-quarters  of  an 
hour.  From  the  fact  that  Hei-old  could  not 
have  ridden  to  the  bridge  and  back  in  that 
time  (six  miles),  it  seems  highly  probable  that 
he  did  not  go  to  the  bridge,  but  turned  back 


It  was  not,  generally  known  then  among  the  !  about  where  Colonel  Wells  thinks  Mudd  said 
citizens  who  was  the  assassin.  (Bean,  Roby,  he  did.  But  however  that  maybe  is  not  im- 
Trotter,  B.  W.  Gardiner,  M.  L.  McPherson,  John  j  portant,  as  it  is  certain  from  the  evidence  of 
McPhersou.)  In  fact  it  was  not  generally  known  I  these  four  witnesses  that  Herold  did  not  wait 


with  certainty  at  the  theater,  or  in  Washington, 
Friday  night,  whether  Booth  was  the  murderer. 
(Gobriglit.)  In  Bryantown  it  was  commonly 
understood  that  Boyle,  a  noted  desperado  of  that 
region,  who  assassinated  Capt,  Watkins  last  fall, 
was  one  of  the  assassins.  (M.  L.  McPherson, 
Bean,  Trotter,  Roby.)  It,  was  not  known  that 
the  murderer  had  been  tracked  into  that  neigh 
borhood.  (Bean,  Dr.  Goo.  Mudd.)  Lieutenant 


(Bean 
Dr.  G 


at  the  branch  for  Mudd's  return  from  Bry 
antown. 

As  Mudd  rode  home,  he  turned  out  of  his 
way  to  see  his  neighbor,  Hardy  (who  lives 
half-way  between  the  house  of  the  accused 
and  Bryantown),  about  some  rail-timber  he 
had  engaged  there.  The  house  is  not  in  view 
of  the  road,  a  clump  of  pines  intervening. 
He  told  Hardy  and  Farrell  of  the  news.  Har- 
Dana  told  Dr.  Geo.  Mudd,  Saturday  afternoon,  dy  says: 
that  Boyle  assassinated  Mr.  Seward,  and  Booth  1  "He  said  to  me  that  there  was  terrible  news 
the  President,  but  that  he  thought  Booth  had  not '  now,  that  the  President  and  Mr.  Seward  and 
then  got  out  of  Washington.  Even  next  day  his  son  had  been  assassinated  the  evening 
(Sunday)  it  was  reported  there  that  it  was  Edwin  before.  Something  was  said  in  that  connec- 
Booth  who  killed  the  President.  tion  about  Boyle  (the  man  who  is  said  to  have 

The    accused    loft    Bryantown     about    four   killed     Captain    Watkins)    assassinating    Mr. 

Seward.  I  remember  that  Booth's  name  was 
mentioned  in  the  same  connection,  and  I  asked 
him  if  Booth  was  the  man  who  had  been  down 
there.  His  reply  was  that  he  did  not  know 
whether  it  was  that  man  or  one  of  his  broth- 


o'clock  to  return  home.  Betty  Briscoe  says  the 
same  man  who  had  turned  back  at  the  bridge 
stopped  in  the  edge  of  a  branch,  which  the 
road  crosses  a  couple  of  hundred  yards  from 
the  bridge,  until  Mudd  returned  from  the 
town,  and  then  they  rode  off  together  across 
the  branch,  "up  the  road."  But  Booz  says  he 
saw  Mudd  a  couple  of  hundred  yards  beyond 
that  crossing  leisurely  going  through  the  farm 
Booz  lives  on,  by  a  near-cut  which  he  usually 
traveled,  alone;  and  that  he  would  himself 
have  probably  noticed  the  man  at  the  crossing, 
which  was  in  full  view  of  where  he  was,  had 
he  been  waiting  there ;  and  would  have  cer 
tainly  noticed  him  had  he  been  with  Mudd 
traveling  the  main  road,  when  Mudd  turned 
into  the  cut-off  through  the  farm — but  he  saw 
no  one  but  the  accused.  Susan  Stewart  also 
saw  Mudd  in  the  by-road  returning  home 
alone,  and  did  not  see  any  man  going  the 
main  road,  which  was  in  full  view.  I  call  the 
attention  of  the  Court  to  the  plat  by  which 
the  branch  and  these  roads  are  shown,  and  to 
the  fact  that  there  is  no  road  turning  off  from 
the  main  road  between  Booz's  place  and  Bry 
antown,  except  the  side  road  by  Booz's  house. 
If  further  refutation  of  the  testimony  of  Bet 
ty  Briscoe  on  this  point  be  required,  it  is 
found  in  the  evidence  of  Primus  Johnson,  who 
saw  Herold  pass  the  elder  Mudd's  in  the  main 
road,  going  toward  the  house  of  the  accused, 
and  some  time  after  that,  himself  caught  a 
Lorse  in  the  pasture,  and  rode  toward  Bry 
antown,  and  met  and  passed  Dr.  Mudd  coming 
leisurely  from  Bryantown,  alone,  at  Booz's 
farm;  and  that  from  the  time  he  saw  Herold 
until  he  met  and  passed  Mudd  was  full  an 
hour  and  a-half.  And  in  the  evidence  of  John 
Acton,  who  was  on  the  roadside,  three  miles 
from  Bryantown,  when  Herold  passed,  at 
between  three  and  four  o'clock,  and  who 
remained  there  an  hour,  and  Dr.  Mudd  did 
not  go  by  in  that  time.  Acton  also  says, 
that,  between  the  time  Herold  and  Mudd  went 


ers;  he  understood  that  he  had  some  brothers. 
That  ended  the  conversation,  except  that  he 
said  it  was  one  of  the  most  terrible  calamities  thai 
could  have  befallen  the  country  at  this  time. 

"  Q.  Did  you  say  that  it  was  understood  or 
said  that  Booth  was  the  assassin  of  the  Pres 
ident?  A.  There  was  some  such  remark  made, 
but  I  do  not  exactly  remember  the  remark." 

They  both  say  he  seemed  heartily  sorry  for 
the  calamity,  and  that  he  said  he  had  just 
come  from  Bryantown,  and  heard  the  news 
there.  Hardy  says  he  stayed  there  only 
about  ten  minutes,  and  left  just  about  sun 
down.  Farrell  corroborates  Hardy  as  to  the 
conversation,  except  that  he  reports  nothing 
as  to  Boyle's  name  being  mentioned;  but  he 
says  the  conversation  was  going  on  when  he 
joined  Hardy  and  Mudd.  He  says  the  house 
is  less  than  a  quarter  of  a  mile  off  the  road, 
and  that  accused  stayed  there  about  fifteen 
minutes. 

Now,  I  ask  the  Court,  what  is  there  up  to 
this  point  to  indicate  that  Mudd  knew  or  had 
any  suspicion  that  the  broken-legged  man  was 
implicated  in  the  crime?  If  there  is  anything 
in  proof  showing  that  fact,  I  fail  to  find  it. 
True,  he  had  met  Booth  twice  in  November — 
five  months  before.  Had  seen  him  that  dark, 
cloudy  morning,  at  day-break,  faint  with 
fatigue  and  suffering,  muffled  in  his  shawl 
and  disguised  in  a  heavy  beard;  had  minis 
tered  to  him  in  the  dim  light  of  a  candle, 
whose  rays  struggled  with  the  dull  beams  of 
the  opening  day;  had  seen  him,  perhaps, 
sleeping  in  the  darkened  chamber,  his  mus 
tache  then  shaved  off,  his  beard  still  on,  his 
effort  at  concealment  still  maintained. 
(Wells.)  And  here  let  me  remind  the  Court, 
that  there  is  nothing  in  the  evidence  showing 


328 


ARGUMENT    OF    THOMAS    EWING,    JR. 


that  Booth  spoke  a  u-ord,  but  where  either  of  the 
men  are  referred  to  as  saying  anything,  ''the 
smaller  man  :I  was  the  spokesman.  Let  it  be 
remembered,  too,  that  Booth  was  an  actor,  accus 
tomed  by  years  of  professional  practice  to  dis 
guise  his  person,  his  features,  and  his  tones,  so 
that  if  Mudd  had  been  an  intimate  associate, 
instead  of  a  mere  casual  acquaintance,  it  would 
have  been  easy  for  Booth  to  maintain  a  disguise 
even  when  subjected  to  close  scrutiny  under  cir 
cumstances  favorable  to  recognition.  If  the 
Court  will  also  consider  with  what  delicacy  a 
physician  and  a  gentleman  would  naturally  re 
frain  from  an  obtrusive  scrutiny  of  a  patient 
coming  to  his  house  under  the  circumstances, 
they  will  appreciate  how  easy  it  was  for  Booth 
to  avoid  recognition,  and  how  probable  that 
Mudd  had  no  suspicion  who  his  patient  was. 
Had  he  recognized  Booth  before  he  went  to  Bry- 
antown,  and  heard  there  that  name  connected 
with  the  "terrible  calamity,"  would  he  have 
jogged  quietly  home,  stopping  to  chat  with 
Booz,  to  look  after  his  rail-timber,  to  talk  of  the 
names  of  the  assassins  with  his  neighbors? 
Unless  the  Court  start  out  with  the  hypothesis 
of  guilt,  and  substitute  unsupported  suspicion 
for  proof — which  I  respect  them  too  highly  to 
fear  for  a  moment  they  will  do — they  can  not 
charge  him  with  a  recognition  of  Booth  before 
he  returned  home  from  Bryantown. 

Hardy  says  it  was  about  sundown  when  Mudd 
left;  Farrell  says  about  5  o'clock.  He  had  two 
miles  to  ride  home.  It  must  have  been  sundown 
when  he  got  home,  and  the  men  had  just  gone. 
Betty  Washington  says  that  three  or  four  min 
utes  after  Herold  (the  last  of  the  two)  disap 
peared  toward  the  swamp,  Mudd  came  through 
the  hall  to  the  kitchen,  and  was  then  first  seen 
by  her  after  his  return  from  Bryantown.  The 
other  servants  had  not  come  from  the  field  when 
the  men  started,  and  we  arc,  therefore,  left  to 
that  one  witness  to  show  that  the  statement  of 
Simon  Gavacan,  one  of  the  detectives,  who  says 
uhe  thinks  "  Mudd  said  he  went  with  them  part 
of  the  way,  is  incorrect.  It  is  inconsistent,  too, 
with  Mudd  s  statement  to  Col.  Wells  on  the  sub 
ject,  which  is  as  follows:  "The  Doctor  said  that 
as  he  came  back  to  the  house  he  saw  the  person, 
that  he  afterward  supposed  to  be  Herold,  pass 
ing  to  the  left  of  the  house,  and  toward  the  barn 
or  the  stable ;  that  he  did  not  see  the  other  per 
son  at  all  after  he  left  him  at  the  house,  which 
was  about  1  o'clock,  I  think."  This  statement, 
and  that  of  Betty  Washington,  last  above  quoted, 
coincide  with,  and  strengthen  each  other. 

It  is  true,  Dr.  Mudd  did  say  to  all,  who  asked 
him,  that  he  had  shown  Herold  the  way  to  Par 
son  Wilmer's  by  the  short  route,  but  this  was  in 
the  morning,  soon  after  the  parties  reached  the 
house,  and  before  the  idea  of  the  carriage  ap 
pears  to  have  been  suggested.  This  is  shown 
by  the  statement  of  Col.  Wells,  who  says  that 
the  accused,  in  the  same  conversation  in  tchich  he 
said  that  Booth  and  Ilerold  had  just  gone  from  the 
house  as  he  came  up,  told  him  that  "  Hei'old,  the 
younger  of  them,  asked  him  the  direct  route  to 
Piney  Chapel,  Dr.  Wilmer's,  saying  that  he  was 
acquainted  with  Dr.  Wilmer."  He  described  the 
main  traveled  road,  which  leads  to  the  right  of 
his  house,  and  was  then  asked  if  there  was  not 


a  shorter  or  nearer  road.  He  said,  "Yes;  there 
is  a  road  across  the  swamp  that  is  about  a  mile 
nearer,  I  think;"  lie  said  it  was  five  miles  from 
his  house  to  Piney  Chapel  \)y  the  direct  road, 
and  four  miles  by  the  marsh,  and  undertook  to 
give  him  (as  he  said)  a  description  by  which 
they  could  go  by  the  nearer  route.  He  said 
that  the  directions  were  these:  ''They  wore  to 
pass  down  by  his  barn,  inclining  to  the  left. 
and  then  pass  straight  forward  in  a  new  direc 
tion  across  the  marsh,  and  that,  on  passing 
across  the  marsh,  they  would  come  to  a  hill; 
keeping  over  the  hill,  they  would  come  in  sight 
of  the  roof  of  a  barn,  and,  letting  down  one  or 
two  fences,  they  would  reach  the  direct  road.;? 

The  accused  meant,  of  course,  that  this  in 
quiry  and  explanation  occurred  before  his  re 
turn  to  the  house  from  Bryantown,  and  so  Col. 
Wells  understood  him,  for  he  so  in  effect  says. 
The  statement  of  the  accused  to  Dr.  George 
Mudd,  the  next  day  after  Booth  left,  is  to  the 
same  effect.  He  said:  "That  these  parties 
stated  that  they  came  from  Bryantown,  and 
were  inquiring  the  Avay  to  the  Rev.  Dr.  Wil 
mer's,"  thus  putting  their  inquiry  for  the  route 
to  Parson  Wilmer's  in  direct  connection  with 
their  early  explanation  as  to  whence  they  came. 

I  have  no  doubt  that  Gavacan,  the  detective, 
recollects  an  inference  which  he,  and,  perhaps, 
also  his  associate  detective,  Williams,  drew 
from  Dr.  Mudd  saying  that,  he  had  shown 
Herold  the  route  to  Parson  Wilmer  s;  that  he 
showed  it  as  Booth  and  Herold  were  leaving. 
But  the  inferences  of  detectives,  under  the 
strong  stimulus  of  prospective  rewards,  are  in 
ferences  generally  of  guilt ,;  and  that  these  gen 
tlemen  were  not  free  from  the  weaknesses  of 
their  profession,  and  that  they  grossly  misrep 
resented  Dr.  Mudd  in  other  important  state 
ments,  will  presently  be  shown  to  the  satisfac 
tion  of  the  Court. 

Now,  if  Mudd  did  not  know,  when  lie  talked 
with  Hardy  about  the  assassination,  and  JF  :oke 
of  Booth  in  connection  with  it,  that  the  assas 
sin  was  at  his  house — as  I  think  the  evidence 
shows  he  did  not — then  when  did  he  first  sus 
pect  it?  Col.  Wells  says  his  inference  was, 
from  something  the  accused  said,  that  he  sus 
pected  the  crippled  man  to  be  Booth  before  he 
left  the  premises.  The  evidence  not  only  shows 
that  when  Mudd  returned  Booth  had  gone  out 
of  sight,  but  it  also  shows  what  fact  it  wa.$ 
that,  added  to  the  undue  excitement  of  the 
strangers,  and  to  the  fact  that  the  crippled 
man  shaved  off  his  moustache,  thoroughly 
aroused  his  suspicion.  It  was  the  fact  that  his 
wife  said  to  him,  after  they  left,  that,  as  the  crip 
pled  man  came  down  to  go,  his  false  whiskers  be 
came  detached  from  his  face.  (Lieut.  Lovett.) 
When  she  told  him  this,  and  what  he  said  or 
proposed  to  do,  was  not  shown  by  the  prosecu 
tion,  and,  by  the  rules  of  evidence,  could  not  be 
by  the  defense.  But  that  was  a  fact  which 
could  not  probably  have  been  communicated  to 
Mudd  by  his  wife  until  Booth  had  gone. 

In  the  evidence  adduced  as  to  Mudd's  sub 
sequent  conduct  and  statements,  I  need  only 
call  the  attention  of  the  Court  to  two  points, 
for  in  it  there  is  nothing  else  against  him : 
1st.  He  did  not  tell,  on  Tuesday,  that  the  boot 


THE    CONSPIRACY    TRIAL. 


329 


was  there,  far  down  in  the  leg  of  which  wasi  No  more  effective  refutation  of  this  state- 
found,  by  the  officers,  '-J.  Wilkes,"  written  in  ment,  that  Mudd  denied  on  Tuesday  that  two 
pale  ink.  I  answer,  the  boot  was  not  found  by  '  strangers  had  been  at  his  house,  can  be  given 
his  wife  until  several  days  after  the  assassin  i  than  to  ask  how  came  Lieut.  Lovett  and  the 
left,  and  was  then  found  in  sweeping  under  the  i  detectives  at  Dr.  Mudd's  ?  They  did  not  scent 
bed.  (Hardy.)  We  have  every  reason  to  sup- j  out  the  track  for  themselves.  They  were  at 
pose  it  was  not  found  until  after  Tuesday,  for ;  Bryantown  on  Saturday,  and  were  at  fault, 
the  accused,  on  Friday,  before  a  question  was  and  had  they  been  let  alone,  would  probably 
asked,  or  a  word  communicated  to  him,  told  of  lave  remained  at  fault,  and  not  have  gone  to 


the  boot  himself,  and  had  it  produced,  and  said,  in 
presence  of  his  wife,  it  was  found  by  her  after 
the  officers  were  there  before.  (Hardy.) 

2d.  Of  the  three  detectives  who  went  to  the 
house  of  accused  Tuesday,  Williams  says  :  Ac 
cused  denied  throughout  that  two  men  had 
been  there;  yet  he  says,  on  cross-examination, 
that  accused,  in  the  same  conversation,  pointed 
out  the  route  the  men  had  taken  toward  Wil- 
mer's.  Gavacan  said  he  at  first  denied  two  men 
had  passed  there,  and  then  admitted  it.  Lloyd 
says  he  denied  it  from  beginning  to  end,  on 
Tuesday.  But  Lieut.  Lovett,  who  went  with 
and  in  command  of  these  detectives^  speaking 
of  this  interview  on  Tuesday,  says:  "  We  first 
asked  ivhether  there  had  been  any  strangers  at  his 
house,  and  he  said  there  were."  The  three  detec 
tives  are  manifestly  mistaken  ;  either  from  in 
firmity  of  memory,  or  from  some  less  pardon 
able  cause,  they  have  failed  to  recollect  and 
truthfully  render  what  Dr.  Mudd  did  say  on 
that  subject. 

The  commentators  upon  the  law  of  evidence 
give  a  caution  which  it  may  be  well  for  the 
Court  to  observe.  They  admonish  us  how  easy 
it  is  for  a  corrupt  witness  to  falsify  a  conver 
sation  of  a  person  accused,  and  as  the  accused 
can  not  be  heard,  how  difficult,  if  not  impossi 
ble,  contradiction  is.  How  easy  for  an  honest 
witness  to  misunderstand,  or  in  repeating 
what  was  said,  to  substitute  his  own  language 
or  inference  for  the  language  which  was  really 
used,  and  thus  change  its  whole  meaning  and 
import.  In  no  case  can  the  caution  be  more 
pertinent  than  in  this.  The  very  phrensy  of 
madness  ruled  the  hour.  Reason  was  swal 
lowed  up  in  patriotic  passion,  and  a  feverish 
and  intense  excitement  prevailed  most  unfa 
vorable  to  a  calm,  correct  hearing  and  faith 
ful  repetition  of  what  was  said,  especially  by 
the  suspected.  Again,  and  again,  and  again 
the  accused  was  catechised  by  detectives,  each 
of  whom  was  vicing  with  theotheras  to  which 
should  make  the  most  important  discoveries, 
and  each  making  the  examination  with  a  pre 
conceived  opinion  of  guilt,  and  with  an  eager 
desire,  if  not  determination,  to  find  in  what 
mierht  be  said  the  proofs  of  guilt.  Again,  the 
witnesses  against  the  accused  have  testified 
under  the  strong  stimulus  of  a  promised  re 
ward  for  information  leading  to  arrest  and 
followed  by  convictions.  (See  order  of  Secre 
tary  of  War.)  At  any  time  and  in  any  com 
munity,  an  advertisement  of  rewards  to  in 
formers  would  be  likely  to  be  responded  to — 
at  a  time,  and  on  an  occasion  like  this,  it 
would  be  a  miracle  if  it  failed  of  effect.  In 
view  of  these  considerations,  the  Court  can 
not  be  too  vigilant  in  its  scrutiny  of  the  evi 
dence  of  these  detectives,  or  too  circumspect 
in  adjust.ing  the  influence  to  be  given  to  it. 


Dr.  Mudd's.  By  whom  and  when  was  the  in- 
brmation  given  which  brought  them  there  ? 
The  next  morning  after  the  startling  news  of 
he  assassination  reached  him,  the  accused 
went  to  Dr.  George  Mudd,  a  man  of  spotless 
integrity  and  veracity,  and  of  loyalty  un 
swerving  through  all  the  perilous  and  dis 
tressing  scenes  of  the  border  war,  and  fully 
informed  him  of  all  that  had  occurred — the 
arrival  of  the  two  strangers,  the  time  and  cii*- 
cumstances  under  which  they  came,  what  he 
had  done  for  them,  the  suspicions  he  enter 
tained,  when  they  departed,  and  what  route 
they  had  taken;  and  requested  him,  on  his 
behalf  and  in  his  name,  to  communicate  this 
information  to  the  military  authorities  on  his 
return  that  day  to  Bryantown.  Dr.  George 
Mudd  efrdmake  the  communication  as  requested, 
on  Monday  morning,  to  Lieut.  Dana,  and  fur 
ther  informed  him  of  Dr.  Samuel  Mudd's  de 
sire  to  be  sent  for  any  further  information 
which  it  might  be  in  his  power  to  give.  In 
consequence  of  this,  and  of  this  alone,  Lieut. 
Lovett  and  the  detectives  did,  on  Tuesday,  go 
to  the  house  of  the  accused,  accompanied  by 
Dr.  George  Mudd,  who  prefaced  his  introduc 
tion  by  informing  the  accused  that,  in  accord 
ance  with  his  request,  he  had  brought  Lieut. 
Lovett  and  the  detectives  to  confer  with  him 
in  reference  to  the  strangers  who  had  been  at 
Of  these  facts  there  is 
They  stand  too  promi- 

nenty  upon  the  record  to  be  ignored  or  eva 
ded.  But  for  this  information  the  detectives 
would  not  have  been  at  the  house  of  the  ac 
cused  at  all.  They  came  at  his  request,  and 
when  they  came  it  is  absurd  and  idle  to  say 
that  he  denied,  almost  in  the  presence  of  Dr. 
George  Mudd,  who  had  been  his  messenger 
and  was  then  in  the  house,  that  the  two  stran 
gers  had  been  there.  On  the  contrary,  the 
evidence  shows  he  imparted  all  he  knew,  and 
pointed  out  the  route  which  the  strangers 
took  when  they  left — but  which  Lieut.  Lovett 
and  the  detectives  did  not  at  once  pursue,  be 
cause  they  chose  to  consider  his  statement  un- 
candid,  and  intended  to  put  them  upon  a  false 
scent.  Indeed,  so  accurate  was  the  descrip 
tion  given  by  the  ascused  to  Lieut.  Lovett, 
Tuesday,  of  the  persons  who  had  been  at  his 
house,  that  the  lieutenant  says  he  was  satis 
fied,  from  Mudd's  description,  they  were  Booth  and 
Her  old. 

It  was  in  great  part  by  reason  of  Dr.  Mudd's 
having  delayed  from  Saturdaj'  night  until 
Sunday  noon  to  send  to  the  authorities  at  Bry 
antown  information  as  to  the  suspected  per 
sons  who  had  been  at  his  house,  that  he  was 
arrested  and  charged  as  a  conspirator;  and 
yet  I  assert  this  record  shows  he  moved 
more  promptly  in  communicating  his  inform- 


his  house  Saturday, 
no  doubt  or  dispute. 


530 


ARGUMENT    OF   THOMAS    EWTNG,    JR. 


ation  than  they  did  in  acting  on  it.     His  mess-  j 
age   was  communicated   to   Lieut.  Dana  Mon- ! 
day  morning.      Tuesday,  Lieut.  Lovett  and  the  ! 
detectives  came,  and  that  officer  got  such  in 
formation   from  Dr.  Mudd   as   convinced  him 
the  suspected  persons  were  Booth  and  Herold,  ; 
and  yet  it  was   not  until   Col.  Wells  came,  on  • 
Saturday,    that  an  energetic  effort  was  made  to  j 
find  the  route  of  the  assassin.     On  that  day, 
Dr.  Mudd  himself  went  with  that   officer,  and  I 
followed  the  tracks  on  the  route  indicated  be- | 
yond    the     marsh    into    a     piece     of     plowed 
ground,  where  the  tracks  were  lost.     But  Col. 
Wells  had  got  the  general  direction,  and  it  was 
in  consequence  of  the  information  sent  by  the 
accused  to  the  authorities  the  day  after  Booth 
left  his  house,  that  he  was  tracked  to  the  Po 
tomac. 

But  the  evidence  does  not  show  that  Dr. 
Mudd  delayed  at  all  in  communicating  his  in 
formation,  for  it  does  not  show  when  his  wife 
told  him  of  the  false  whisker  of  the  crippled 
man.  But,  admit  she  told  him  on  Saturday 
evening,  as  soon  as  the  men  left.  It  was  four 
miles  to  Bryaritown,  and  his  wife  may  have 
feared  to  be  left  alone  that  night.  Boyle,  who 
haunted  that  neighborhood,  was  understood 
by  Dr.  Mudd  to  have  been  one  of  the  assas 
sins  (Hardy),  and  may  not  his  or  his  wife's 
fears  of  the  vengeance  of  that  desperado  have 
prevented  him  communicating  his  suspicions 
direct  and  in  person  to  the  officer  at  Bryantown? 
He  told  Dr.  George  Mudd  next  day,  when  ask 
ing  him  to  go  to  the  authorities  with  the  in 
formation,  to  caution  them  not  to  let  it  be  pub 
licly  known  that  he  had  volunteered  the  state 
ment,  lest  he  might  be  assassinated  in  revenge 
for  having  done  it. 

Having  thus  presented  and  discussed  some 
what  iu  detail  the  testimony  in  this  case,  I 
now  ask  the  indulgence  of  the  Court  while  1 
briefly  review  sonic  of  its  leading  features. 

Booth  and  Mudd  met  first  in  November  last 
at  church,  near  Bryantown,  casually,  and  but 
for  a  few  minutes.  Their  conversation  v,ras  in 
presence  of  many  others,  including  men  of 
unquestioned  loyalty.  Next  morning,  Booth 
left  Dr.  Queen's,  rode  by  Mudd's,  talked  of 
buying  his  farm,  got  him  to  f>how  him  over  to 
Gardiner's,  a  quarter  of  a  mile  off,  where  he 
bought  a  horse,  Mudd  manifesting  no  interest 
in  the  purchase.  They  rode  away  together 
toward  Mudd's  house,  and  toward  Bryantown, 
where  Gardiner  found  Booth  next  morning  at 
the  village  hotel.  Booth  was  again  at  Dr. 
Queen's  in  the  middle  of  December.  But  the 
evidence  shows  that  he  did  not  go  into  Mudd's 
neighborhood,  or  seek  or  see  him.  So  far  as 
we  dare  speak  from  the  evidence — and  we 
should  dare  speak  from  nothing  else — that  is 
all  the  intercourse  between  Mudd  and  Booth 
in  that  neighborhood  before  the  assassination. 

What  was  there  in  that  to  attract  attention 
or  excite  remark  toward  Mudd  more  than  to 
Dr.  Queen  or  Mr.  Gardiner,  or  any  other  gen 
tleman  in  Charles  county,  to  whom  Booth  had 
been  introduced,  and  with  whom  he  had  con 
versed  ?  All  that  is  shown  to  have  passed 
between  them  was  perfectly  natural  and  harm 
less,  and  nothing  is  to  be  presumed  which  was 


not  shown.  True,  they  might  have  talked  of 
and  plotted  assassination;  but  did  they?  Is 
there,  in  the  intercourse  which  had  thus  far 
occurred,  any  incident  from  which  such  a  de 
duction  could  be  drawn,  or  which  would  jus 
tify  a  suspicion  that  any  such  thing  was 
thought  of  or  hinted  at?  Nor  did  they  ever 
meet  again  anywhere  before  the  assassination, 
unless  the  testimony  of  Weichmann  is  to  be 
accepted  as  true,  which,  upon  this  point,  at 
least,  is  quite  unworthy  of  credence.  lie 
swears  to  having  met  Dr.  Mudd  and  Booth,  in 
the  city  of  Washington,  about  the  middle  of 
January — certainly  after  the  holidays.  But 
it  is  in  proof  by  many  witnesses,  who  can  not 
be  mistaken,  have  not  been  impeached,  and 
who  unquestionably  stated  the  truth,  that  Dr. 
Mudd  was  from  home  but  one  night  from  the 
23d  of  December  to  the  2od  of  March,  and 
that  night  at  a  party  in  his  own  neighborhood. 
If  this  be  so,  and  there  is  no  reason  to  doubt 
it.  then  Weichmann's  statement  can  not  be 
true.  The  mildest  thing  that  can  be  said  of 
him,  as  of  Norton,  is,  that  he  was  mistaken 
in  the  man.  That  which  was  attempted  to  be 
shown  by  this  contradicted  witness  (Weich 
mann)  was,  that  Dr.  Mudd  and  Booth,  who 
were  almost  strangers  to  each  other,  met  Sui1- 
ratt,  to  whom  Booth  was  unknown,  at  the  Na 
tional  Hotel,  and  Avithin  half  an  hour  after 
the  meeting,  plotted  the  assassination  of  the 
President,  his  Cabinet,  the  Vice-President,  and 
General  Grant — all  this  in  Washington,  and 
in  the  presence  of  a  man  whom  one  of  the 
supposed  conspirators  knew  to  be  an  em 
ployee  of  the  War  Department,  and  had  rea 
son  to  believe  was  a  Government  detective! 
It  is  monstrous  to  believe  any  such  tiling  oc 
curred.  It  outrages  all  that  we  have  learned 
of  the  philosophy  of  human  nature,  all  thai 
we  know  of  the  motives  and  principles  of  hu 
man  actions.  And  yet,  if  Mudd  was  not  then 
and  there  inducted  into  the  plot,  he  never  was. 
He  never  su\v  Booth  again  until  after  the  assas- 
sination,  and  never  saw  any  of  the  other  con 
spirators  at  all.  Twice,  then,  and  twice  only— 
unless  the  Court  shall  accept  the  testimony 
of  Weichmann  against  the  clear  proofs  of  an 
alibi,  and  then  only  three  times — he  and  Booth 
had  met.  None  of  these  meetings  occurred 
later  than  the  loth  of  January.  They  are 
shown  to  have  been  accidental  and  brief.  The 
parties  had  but  little  conversation,  and  portions 
of  that  little  have  been  repeated  to  the  Court. 
So  far  as  it  has  been  disclosed,  it  was  as  inno 
cent  as  the  prattle  of  children,  and  not  a  word 
was  breathed  that  can  be  tortured  into  crimi 
nality — not  a  word  or  an  act  that  betokens 
malign  purposes.  Against  how  many  scores 
of  loyal  persons,  CAren  in  this  community,  may 
stronger  evidence  be  adduced  than  against 
Mudd,  if  the  mere  fact  of  meeting  and  con 
versing  with  Booth  is  to  be  accepted  as  evi 
dence  of  guilt?  Booth  was  a  guest  at  the 
National  Hotel — intelligent,  agreeable,  of  at 
tractive  manner,  with  no  known  blemish  on 
his  character  as  a  man  or  a  citizen.  He  had 
the  entree  of  the  drawing-rooms,  and  mingled 
freely  with  the  throngs  that  assembled  there. 
His  society,  so  far  from  being  shunned,  was 


THE    CONSPIRACY   TRIAL. 


331 


courted;  and  the  fairest  ladies  of  the  land,  ignorance  of  each  other's  movements  and  pur- 
the  daughters  of  distinguished  statesmen  and  :  poses.  Mudd  was  here  the  23d  of  March,  but 
patriots  deemed  it  no  disparagement  to  them  he  was  not  here  for  the  purpose  of  seeing 
to  accept  his  escort  and  attentions.  It  is  not !  Booth,  nor  did  he  see  him.  He  made  no  in- 
extravagant  to  say,  that  hundreds  of  true,  ;  quiry  for  him;  did  not  call  at  his  hotel ;  saw 
Union-loving,  loyal  people  in  tlvis  and  in  !  none  of  his  associates ;  did  not  speak  of  him; 
other  cities,  were  on  terms  of  cordial  and  in- 'did  not,  so  far  as  appears,  even  think  of  him. 
timateassociation  with  him.  And  why  should  !  On  the  llth  of  April,  only  three  days  before 
they  not  have  been  ?  He  was  under  no  sus-  j  the  frightful  tragedy  was  enacted,  Mudd  was 


picion.  They  did  not  shun  him.  Why  should 
Mudd  ?  And  why  shall  what  was  innocent  in 
them  be  held  as  proof  of  guilt  in  him  ?  Let 
it  be  remembered,  in  this  connection,  that  Dr. 


at  Giesboro,  in  sight  of  Washington.  Booth 
was  then  at  the  National  Hotel;  and  if  Mudd 
was  leagued  with  him,  that  was  the  time  of  all 
others,  from  the  conception  to  the  corisumma- 


Mucld's  house  was    searched    and   his   papers  j  tion  of  the  deed,  when    he  would    have   seen 
seized;  that  Surratt's  house  was   seized  and  I  and  conferred  with  him.     If  Mudd  was  a  con- 


searched  ;  that  all  the  effects  of  Booth,  Atze- 
rodt,  Arnold,  Herold,  Spangler,  and  Mrs.  Sur- 
ratt,  that  could  be  found,  were  seized  and  ex 
amined  ;  and  among  them  all  not  a  letter,  a 
note,  a  memorandum,  not  the  scrape  of  a  pen  by 
any  person  or  in  any  form,  has  been  found 
implicating  Dr.  Mudd.  Let  it  further  be  re 
membered,  that  all  these  persons  have  been 
subjected  to  repeated  examinations,  under  ap 
palling  circumstances,  by  various  officials  of 
the  Government,  eager  to  catch  the  faintest 
intimation  of  Mudd's  complicity,  and  that  not 
one  of  them  has  mentioned  or  hinted  at  his 
name.  Let  it  also,  be  remembered,  that  anon 
ymous  letters  have  been  picked  up  in  railroad 
cars,  found  in  pigeon-holes  at  hotels,  rescued 
from  the  waves,  and  that  the  continent  has 
been  traversed  and  the  ocean  vexed  in  search 
of  proofs  of  the  conspiracy,  its  instigators, 
leaders,  and  abettors,  and  that  in  all  this  writ 
ten  and  oral  testimony  there  is  not  a  word 
making  the  remotest  allusion  to  Dr.  Mudd. 
The  probabilities  are  as  a  thousand  to  one  that 
he  never  knew,  or  heard,  or  imagined,  of  a 
purpose,  much  less  plotted  in  a  conspiracy, 
either  to  capture  or  to  assassinate  the  President. 
There  is  not  only  a  failure  to  show  his  connec- 
riection  affirmatively,  but,  if  the  rules  of  law 
be  reversed,  and  guilt  be  presumed  until  in 
nocence  be  shown,  then,  I  say,  he  has  carried 
his  proofs  in  negation  of  complicity  to  a  point 
as  near  demonstration  as  it  is  possible  for  cir 
cumstantial  evidence  to  reach.  I  once  more 
concede,  that  (if  the  Court  accept  Weich- 
mann's  statement)  it  is  possible  he  may  have 
talked  treason  and  plotted  assassination  with 
Booth  and  Surratt,  but  it  is  indefinitely  re 
moved  from  the  probable;  and  neither  liberty 
nor  life  is  to  be  forfeited  upon  either  proba 
bilities  or  possibilities.  I  can  not  bring  my 
self  to  fear  that  this  Commission  will  sanction 
what,  in  my  jiidgment,  would  be  so  shocking 
and  indefensible  a  conclusion. 

If  he  and  Booth  had,  at  the  alleged  meeting 
in  January,  confederated  for  the  perpetration  of 
one  of  the  most  stupendous  and  startling  crimes 
in  the  annals  of  human  depravity,  who  can 
doubt  that  frequent  meetings  and  consulta 
tions  would  thereafter  have  occurred,  and 
that  they  would  have  increased  in  frequency 
as  the  time  for  the  consummation  of  the  atro 
cious  plot  approached?  Yet,  though  within 
six  hours'  ride  of  each  other,  they  had  no 
meetings,  no  consultations,  no  intercourse,  no 
communication,  no  concert,  but  were  in  total 


spirator,  he  knew  of  Booth's  presence  here 
then  ;  yet  he  did  not  come  to  the  city — did  not 
inquire  for  Booth,  see  him,  hold  communica 
tion  with  him,  learn  whether  he  was  in  Wash 
ington  or  Boston,  Nassau  or  London.  Three 
days  only  before  the  frightful  tragedy — three 
days  before  the  world  was  astounded  by  its 
enactment !  Imagine,  if  you  can — if  he  was 
a  conspirator — what  a  tumult  of  thought  and 
emotion  must  have  agitated  him  then — what 
doubts  and  misgivings — what  faltering  and 
rallying  of  resolution — what  invocations  to 
"stop  up  the  access  and  passage  to  remorse" — 
and  then  ask  your  own  hearts  and  judgments 
if  it  is  natural,  or  possible,  that,  at  such  a  mo 
ment  and  under  such  circumstances,  he  could 
quietly  have  transacted  the  business  that 
brought  him  to  Geisboro,  then  turn  his  back 
upon  Washington,  indifferent  to  the  failure  or 
success  of  the  events  with  which  his  own  life, 
the  happiness  of  his  family,  and  all  that  was 
dear  to  him  on  earth,  were  bound  up  ?  If  a 
conspirator,  he  knew  what  had  been,  and  what 
was  to  be,  done.  He  knew  that  the  hour  for 
the  bloody  business  was  at  hand,  and  that 
everything  depended  upon  the  secrecy  and 
success  of  its  execution.  Yet  he  was  indif 
ferent.  He  sought  no  interview  with  his  sup 
posed  confederates — gave  them  no  counsel  or 
assistance — took  no  precautions  for  security — 
gave  no  signs  of  agitation  or  concern — but,  in 
sight  of  the  place  and  the  agents  selected  for 
the  enactment  of  the  horrible  deeds,  turned 
his  back  upon  them  all,  with  an  indifference 
that  bordered  upon  idiocy,  quietly  trafficked 
at  Geisboro,  and  returned  to  the  seclusion  of 
his  family  and  farm.  You  know,  gentlemen, 
that  this  is  impossible.  You  know  that  it 
could  not  have  happened  without  outraging 
every  law  of  human  nature  and  human  ac 
tion.  You  know  that  at  such  an  hour  his  soul 
would  have  been  shaken  with  the  maddest 
storm  and  tempest  of  passion,  and  that  no 
mere  business  affair  on  earth  could  have  se 
duced  his  thoughts  fora  moment  from  the  sav 
age  slaughter  he  had  in  hand.  It  would  have 
engrossed  all  his  thoughts,  and  shaped  all  his 
actions.  No  one  can,  in  the  strong  light  of 
the  evidence,  believe  he  was  a  conspirator. 

I  then  confidently  conclude  that  Dr.  Mudd 
can  not  be  convicted  as  a  principal  in  the  fel 
ony.  He  did  not  participate  in  its  commis 
sion,  and  was  more  than  thirty  miles  distant 
from  the  scene  when  it  was  committed.  He 
can  not  be  convicted  as  an  accessory  before 


332 


ARGUMENT    OF    THOMAS    EWING,   JR. 


the  fact,  for  the  evidence  fails  to  show  that 
he  had  any  knowledge  or  suspicion  of  an 
intention  to  commit  it.  If,  then,  he  is  to  be 
held  responsible  at  all,  it  is  an  accessory  after 
the  fact.  Does  the  evidence  implicate  him  in 
that  character?  What  is  an  accessory  after 
the  fact  ? 

An  accessory  after  the  fact  is  when  a  per 
son,  knowing  a  felony  to  have  been  committed, 
receives,  relieves,  comforts,  or  assists  him 
whom  he  knows  to  be  the  felon.  He  must 
know  that  the  felon  is  guilty  to  make  him  an 
accessory.  1  Chitt.  Grim.  Laiv,  264. 

Any  assistance  given  to  him  to  hinder  his 
being  apprehended,  tried,  or  punished,  is  suffi 
cient  to  convict  the  oft'ender — as  lending  him 
a  horse  to  escape  his  pursuers  ;  but  the  as 
sistance  or  support  must  be  given  in  order  to 
favor  an  illegal  escape.  1  Chitt.  Crim.  Law, 
265.  If  a  man  receives,  harbors,  or  otherwise 
assists  to  elude  justice,  one  whom  he  knows  to 
be  guilty  of  felony,  he  becomes  thereby  an  ac 
cessory  after  the  fact  in  the  felony.  1  Bish 
op's  Crim.  Law,  487.  Obviously,  a  man  to  be 
an  accessory  after  the  fact  must  be  aware  of  the 
guilt  of  his  principal;  and,  therefore,  one  can 
not  become  an  accessory  by  helping  to  escape 
a  prisoner  convicted  of  felony,  unless  he  has 
notice  of  the  conviction,  or  at  least  of  the  felony 
committed.  1  Bishop's  Crim.  Law,  488.  The 
charge  against  an  accessory  consists  of  two 
parts:  First,  of  the  felonious  situation  of  th 
principal :  and,  secondly,  of  the  guilty  knowl 
edge  and  conduct  of  the  accessory.  It  will 
thus  be  seen  that  knowledge  of  the  crime  com 
mitted,  and  of  the  guilt  of  the  principal  who  is 
aided,  and  aid  and  assistance  after  acquiring  that 
knowledge,  are  all  necessary  to  charge  one  as 
accessory  after  the  fact. 

Now  let  us  apply  the  facts  to  the  law,  and 
see  whether  Dr.  Mudd  falls  within  the  rule. 
On  the  morning  after  the  assassination,  about 
daybreak,  Booth  arrived  at  his  house.  He  did 
not  find  the  doctor  on  watch  for  him,  as  a 
guilty  accomplice,  expecting  his  arrival,  would 
have  been,  but  he  and  all  his  household  were 
in  profound  sleep.  Booth  came  with  a  broken 
leg,  and  his  companion,  Herold,  reported  that 
it  had  happened  by  the  fall  of  his  horse,  and 
that  they  had  come  from  Bryan  town,  and  were 
going  to  Parson  Wilmer's.  The  doctor  rose 
from  his  bed,  assisted  Booth  into  the  house, 
laid  him  upon  a  sofa,  took  him  up  stairs  to 
a  bed,  set  the  fractured  bone,  sent  him  a  razor 
to  shave  himself,  permitted  him  to  remain 
there  to  sleep  and  rest,  and  had  a  pair  of  rude, 
crutches  improvised  for  his  use.  For  all  this 
he  received  the  ordinary  compensation  for 
services  rendered  to  strangers.  He  then  went 
to  his  field  to  work.  After  dinner,  while  the 
day  was  still  dark,  and  Booth  still  resting  dis 
guised  in  his  chamber,  Mudd  left  the  house 
with  Herold.  Even  though  he  had  known  of 
the  assassination,  and  that  his  patient  was  the 


assassin,  none  of  these  acts  of  assistance 
would  have  made  him  an  accessory  after  the 
fact.  "  //  a  prrson  supply  a  felon  with  food,  or 
other  necessaries  J or  Ids  sustenance,  or  profession 
ally  attend  1dm  sick  or  wounded,  though  h>:  know 
him  to  be  a  felon,  these  acts  will  not  be  sujjidrnt  to 
make  a  party  an  accessory  after  the  fact.''  \Yiiar- 
ton's  American  Criminal  Laiv,  p.  7o.  But  he  did 
not  know,  and  had  no  reason  to  suspect,  that 
his  patient  was  a  fugitive  murderer.  The 
most  zealous  advocate  would  not  venture  to 
assert  that  the  evidence  warrants  such  con 
clusion  ;  much  less  will  it  be  assumed  by  one 
acting  under  the  solemn  responsibilities  of 
judge.  Down,  then,  to  the  time  Mudd  left 
home  with  Herold,  after  dinner,  the  evidence 
aifords  no  pretext  for  asserting  he  was  an  ac 
cessory  after  the  fact. 

But  if  he  was  not  then  an  accessory,  he 
never  was.  It  is  shown  that  Herold  turned 
back  on  the  way  to  Bryantown,  and  when 
Mudd  returned,  he  and  Booth  had  gone. 
And  the  evidence  does  not  show  that  he  sus 
pected  them  of  having  been  guilty  of  any 
wrong,  until  his  wife  told  him,  after  they  had 
gone,  that  the  whiskers  of  the  crippled  man 
fell  off  as  he  came  down  stairs  to  go.  True, 
Booth  was  guilty,  and  Mudd  had  shown  his 
companion  the  route  to  Wilmer's;  which  was 
the  only  thing  done  by  Mudd,  from  first  to 
last,  that  could  have  implicated  him,  even  had 
he  from  the  first  known  the  crime  and  the  criminal. 
But  when  he  did  that,  he  did  not  know  either; 
for  he  did  not  know  the  crime  until  he  went 
to  Bryantown,  nor  have  even  the  least  suspi 
cion  of  the  criminal,  until  after  Booth  had 
gone.  I  have  read  you  the  law — the  scienter 
must  be  shown.  Things  not  appearing  and 
not  existing  stand  before  the  law  in  the  same 
category ;  and  the  guilty  knowledge  not  ap 
pearing  in  evidence,  in  the  eye  of  the  law  it 
does  not  exist.  In  this  case  it  is  not  only  not 
shown,  but  is  negatived  by  the  evidence.  The 
conclusion  most  unfavorable  to  Mudd  which 
the  evidence  can  possibly  justify  is,  that,  hav 
ing  had  his  suspicions  thoroughly  aroused  Sat 
urday  night,  he  delayed  until  Sunday  noon 
to  communicate  them  to  the  authorities.  "If 
A  knows  B  Jiath  committed  a  felony,  but  doth  not 
discover  it,  this  doth  not  make  A  an  accessory  after 
the  fact."  1st  Hales  Pleas  of  the  Crown,  618. 
"  Merely  suffering  a  felon  to  escape  will  not  charge 
the  party  so  doing — such  amounting  to  a  mere  omis 
sion."  Whar.  Am.  Crim.  Law,  73. 

Can,  then,  Dr.  Mudd  be  convicted  as  a  conspir 
ator,  or  an  accessory  before  or  after  the  fact,  in 
the  assassination?  If  this  tribunal  is  to  be 
governed  in  itsfindings  by  the  just  and  time-hon 
ored  rules  of  law,  he  can  not;  if  by  some  edict 
higher  than  constitutions  and  laws,  I  know  not 
what  to  anticipate  or  how  to  defend  him.  With 
confidence  in  the  integrity  of  purpose  of  the 
Court  and  its  legal  advisers,  I  now  leave  the 
case  to  them.  SAM'L.  A.  MUDD. 


IN 


DEFENSE  OF  MICHAEL  O'LAUGHLIN  AND  SAM'L  ARNOLD, 


WALTER    S.    COX,    ESQ. 


Mr.  President  and  Gentlemen  of  the  Commission  : 

I  have  appeared  before  you  as  the  sole  coun 
sel  of  the  prisoner,  Michael  O'Laughlin,  and, 
in  part,  represent  the  accused,  Samuel  Arnold. 

I  now  rise  to  their  defense,  deeply  impressed 
with  the  gravity  of  their  situation,  and  the  im 
portance  of  the  duty  it  imposes. 

For  myself,  I  would  say,  that,  born  and  nur 
tured  under  the  aegjs  of  the  Federal  Govern 
ment,  and  schooled  from  childhood  in  that  all- 
embracing  patriotism  which  knows  no  section 
nor  party  when  the  interests  or  glory  of  my 
country  is  in  question,  I  have  been  second  to 
none,  in  attachment  to  the  Federal  Union,  and 
in  hostility  to  the  rebellion  which  menaced  its 
existence.  I  need  hardly  add,  that  no  one 
could  have  more  deplored  and  execrated  the 
odious  crime  wrought  upon  the  Chief  Magis 
trate  of  the  nation  at  a  moment  when  the  re 
wards  of  peace  and  sectional  reconciliation 
were  about  to  crown  his  arduous  and  patriotic 
labors.  Nor  was  I  willing  to  connect  my  hum 
ble  name  with  this  defense  until  I  felt  assured 
that,  the  accused,  for  whom  my  service  was  first 
invited,  was  merely  the  victim  of  compromising 
appearances,  but  was  wholly  innocent  of  the 
great  oiFense.  And  now  that  I  have  heard  the 
evidence  produced  to  you,  I  am  strong  in  the 
conviction  that,  even  if  it  appear  that  these 
tivo  accused  were  ever  beguiled,  for  a  moment, 
to  listen  to  the  suggestions  of  this  restless 
schemer,  Booth,  yet  there  is  no  blood  on  their 
hands,  and  they  are  wholly  guiltless  of  all 
previous  knowledge  of,  or  participation  in, 
that  "arch  deed  of  malice"  which  plunged  the 
nation  into  mourning.  I  feel,  therefore,  that 
I  stand  here,  not  as  the  defender  of  assassins, 
but  to  rescue  the  innocent  from  the  opprobrium 
of  this  great  crime  and  a  death  of  infamy. 

I  can  not  forbear  the  remark  that,  upon  this 
trial,  both  the  accused  and  their  counsel  have 
labored  under  disadvantages  not  incident  to 
the  civil  courts,  and  unusual  even  in  military 
trials.  In  both  the  civil  courts  and  courts- 
martial  the  accused  receives  not  only  a  copy 
of  the  charge,  or  indictment,  in  time  to  prepare 
his  defense,  but  also  a  list  of  the  witnesses 
with  whom  he  is  to  be  confronted.  And,  in  the 
civil  courts,  it  is  usual  for  the  prosecutor  to 
state  in  advance  the  general  nature  of  the  case 
he  expects  to  establish,  and  the  general  scope 


of  the  evidence  he  expects  to  adduce.  By  this 
the  accused  is  enabled  not  only  to  apply  intel 
ligently  the  test  of  cross-examination,  but 
also  to  know  and  show  how  much  credit  is  due 
to  the  witnesses  who  accuse  him.  In  this  case 
the  accused  were  aroused  from  their  slumbers 
ou  the  night  before  their  arraignment,  and,  for 
the  first  time,  presented  with  a  copy  of  the 
charge.  For  the  most  part,  they  were  unable 
to  procure  counsel  until  the  trial  had  com 
menced;  and,  when  counsel  were  admitted,  they 
came  to  the  discharge  of  their  duties  in  utter 
ignorance  of  the  whole  case  which  they  were 
to  combat,  except  as  they  could  gather  it  from 
the  general  language  of  the  charge,  as  well  as, 
for  the  most  part,  wholly  unacquainted  with 
the  prisoners  and  their  antecedents;  and  the 
consequence  is,  that  the  earlier  witnesses  for 
the  Government  were  allowed  to  depart  with 
little  or  no  cross-examination,  which,  subse 
quent  events  show,  was  of  vital  importance  to 
elicit  the  truth,  and  reduce  their  vagueness  of 
statement  to  more  of  accuracy.  And,  I  may 
add,  that  important  parts  of  this  testimony 
have  consisted  of  the  always  suspicious  state 
ments  of  informers  and  accomplices,  brought 
from  remote  places,  whose  antecedents  and 
characters  it  is  impossible  for  the  prisoners  to 
trace. 

I  am  constrained,  further,  to  notice  the  man 
ner  in  which  the  trial  has  been  conducted,  and 
which,  I  think,  can  hardly  have  a  parallel. 
The  accused  were  arraigned  upon  a  single 
charge.  It  described  one  offense  of  some  kind, 
but,  however  specific  in  form,  it  seems  to  have 
been  intended,  like  a  purser's  shirt,  to  fit  every 
conceivable  form  of  crime  which  the  wicked 
ness  of  man  can  devise.  The  crime  is  laid  at 
Washington;  yet  we  have  wandered  far  away, 
like  mariners  who  have  lost  their  compass  and 
can  not  see  the  polar  star.  We  have  been  car 
ried  to  the  purlieus  of  Toronto  and  Montreal, 
and  have  skirted  the  borders  of  New  York  and 
Vermont,  touching  at  Ogdensburg  and  St.  Al- 
bans;  have  passed  down  the  St.  Lawrence,  and 
out  to  sea;  inspected  our  ocean  shipping;  have 
visited  the  fever  hospitals  of  the  British  islands; 
have  returned  to  the  prison-pen  of  Anderson- 
ville;  have  seen  the  camp  at  Belle  Isle  and  the 
historical  Libby,  and  penetrated  the  secret 
councils  of  Richmond;  have  passed  thence  to 
the  hospitals  of  the  West,  and  ascended  the 

333 


334 


ARGUMENT    OF    WALTER    S.    COX. 


Mississippi,  and,  at  length,  terminated  this  ec 
centric  career  in  the  woods  of  New  York  Under 
a  charge  against  these  prisoners  of  conspiring 
to  kill  the  President,  and  others,  in  AVashing- 
ton,  Jefferson  Davis  and  his  associates  have 
been  tried,  and,  in  the  judgment  of  many,  con 
victed  of  starving,  poisoning,  arson,  and  other 


admonish  me  that  I  should  present  some  legal 
considerations,  at  least,  of  a  general  character. 
This  Commission  sits  by  authority  of  the  order 
of  the  President,  offered  in  evidence,  of  Sep 
tember  24,  1862,  which  declared  martial  law 
against  all  rebels  and  insurgents,  their  aiders 
and  abettors,  and  all  guilty  of  any  disloyal  prac- 


crimes  too  numerous  to  mention.  tice,  affording  aid  and  comfort  to  rebels  against 

I  have  apprehended  that  the  counsel  for  the  the  authority  of  the  United  States.  The  ques- 
accused  would  appear  in  a  false  position,  from  tion  of  jurisdiction  having  been  discussed  at 
their  apparent  acquiescence  in  this  wide  range  length  already,  I  shall  not  enter  upon  the  ques- 
of  inquiry,  and,  therefore,  feel  it  due  to  my-  i  tion  whether  this  Court  has  jurisdiction  to  try 
self,  at  least,  to  explain.  I,  for  my  part,  have  I  the  accused  upon  this  charge,  but,  assuming 
felt  no  interest  whatever  in  resisting  the  ex- j  that  for  argument's  sake,  1  shall  endeavor  to 
posure  of  the  misdeeds  of  the  rebel  authorities  ascertain  the  grounds  and  limits  of  that  juris- 


and  agents.  My  only  concern  has  been  to  show 
that  my  clients  had  nothing  to  do  with  the  con 
spiracy  set  forth  in  this  charge.  To  the  best 
of  my  ability,  I  have  scrutinized  and  sifted 


diction,  and  the  mode  in  which  it  is  to  be  ex 
ercised;  and,  with  this  view,  shall  first  submit 
some  general  reflections  upon  the  character  of 
the  offenses  set  forth  in  the  charge  and  specifi- 


the  evidence  of  that  conspiracy,  so  far  as  neces-  cation,  as  they  are  known  to,  and  punishable 
sary  to  their  defense.  With  regard  to  other  |  by,  the  civil  law  of  the  land,  and  then  endeavor 
matters,  foreign  to  this  issue,  1  have  to  say,  in  I  to  ascertain  how  far  this  Commission,  in  deal- 
the  first  place,  the  charge  was  artfully  framed,  ing  with  them,  is  to  be  guided  and  restrained 


with  a  view  to  admit  them  in  evidence.     It  im 
putes  that  the  accused  conspired,  with  Jefferson 


by  that  law. 

Below    the    grade    of   treason,    crimes    are 


Davis  and  others,  to  kill  and  murder  the  Presi-  j  ranged  under  two  general  heads,  viz. :  felonies 
dent,  etc.,  ivith  intent  to  aid  and  comfort  the  in-  \  and  misdemeanors.  The  class  of  felonies  em- 
surgents,  etc.,  and  thereby  aid  in  the  subversion  awe?  j  braces  the  more  heinous  offenses,  such  as  mur- 
ovcrthrow  of  the  Constitution  and  laws  of  the  der,  arson,  robbery,  rape,  etc. ;  and  the  idea 


United  States.  And,  on  the  principle  that  other 
acts,  constituting  distinct  offenses,  were  some 
times  admitted  as  proof  of  intent,  these  sub 
jects,  foreign  to  the  main  issue,  have  been  put 
in  evidence.  Although  this  seems  to  me  a  total 


of  felony  is  generally  associated  with  that  of 
capital  punishment,  though,  in  point  of  fact, 
they  are  not  inseparably  connected.  The  class 
of  misdemeanors  embraces  the  offenses  of  lower 
degrees,  such  as  perjury,  battery,  libels,  public 


misapplication  of  the  rule  of  practice,  yet,  the  |  nuisances,    and  conspiracies,    and,  in    short,  ail 


Court  having  settled  the  principle  in  favor  of 
the  prosecution  in  the  early  part  of  the  trial, 
it  became  useless  to  object  to  each  separate 
item  coming  within  it  afterward.  It  would 
have  been  to  tilt  with  windmills,  for  by  no 


crimes   less    than    felonies.      See    1    Russell  on 
Grimes,  pp.  44,  45. 

A  conspiracy,  then,  belongs  to  the  lower  grade 
of  crime,  and  this  whatever  may  b'.!  its  object, 
whether  to  commit  a  felony  or  a  misdemeanor. 


possible  ingenuity  can  these  foreign  matters  be  I  See  2  JJishop  on  Criminal  Laiv,  sec.  202. 

used  to  the  prejudice  of  the  accused.     I  have        A  word  as  to  the  rationale  of  this  rule.     The 

supposed  that  the  only   object  of  introducing   criminal  law  takes  no  notice   of  a  mere  mental 


them  was  to  bring  to  the  public,  in  the  shape 
of  sworn  testimony,  information  of  the  prac 
tices  of  the  rebel  leaders,  to  which,  however  ir 
regular  the  proceeding,  I  had  no  objection  to 
interpose.  I  can  not,  for  a  moment,  suppose 
that  the  object  was  to  inflame  prejudice  against 
the  accused,  because  of  their  supposed  remote 


intent,,  unaccompanied  by  an  act.  It  would  be 
equally  impossible  for  human  wisdom  to  scru 
tinize  the  operations  of  the  mind  with  that 
accuracy  essential  to  justice,  and  to  adapt  a 
scale  of  punishments  to  offenses  which  have 
no  visible  proportions,  no  tangible  effects. 
Besides  which  the  law  makes  a  charitable  al- 


conriection  with  the  authors  of  all  these  evils,  llowance  for  that  repentance  and  change  of  pur- 
and,  for  want  of  higher  victims,  to  make  them  |  pose  which  may  intervene  at  any  stage  between 


the  scapegoats  for  all  the  atrocities  imputed  to 
the  rebellion;  to   immolate    them,  to   hush  the 


the  first   conception  and  the    consummation  of 
crime.     Between  the  intent  and  the  consmnma- 


clamors  of  the  public  for  a  victim,  or  to  ap-  tion  lies  the  wide  region  of  attempts  from  the 
pease  the  Nemesis  that  has  recorded  the  seci-ets  I  first  feeble  preparation  or  movement,  to  the 
of  the  Southern  prison-houses,  or  the  deadly  1  striking  of  the  deadly  blow.  A  conspiracy  is 
deeds  wrought  through  fire  and  pestilence;  for  I  scarcely  more  than  an  intent,  at  least  in  its 


such  a  proceeding  would  disgrace  this  Govern 


ment  in  the  eyes  of  all  Christendom,  as  much 
as  assassination  would  disgrace  the  spurious 
Government  which  has  just  vanished  into  thin 
air. 

To  come  to  the  issue  before  this  Commission : 


earliest  stage.     It  is  but  the    intent  of  several, 


mutually  communicated,  perhaps  with  mutual 
excitement,  and  encouragement,  and  consulta 
tion,  and  the  chances  of  its  falling  short  of  an 
overt  attempt  are  multiplied  just  in  proportion  to 
the  number  of  wills  between  which  concert  is 
I  had  intended  to  confine  myself  to  a  simple  |  necessary  to  successful  action.  If  it  can  be 
review  of  the  evidence;  but  the  anomalous  |  properly  said  to  advance  beyond  a  mere  intent, 
character  of  the  charge,  the  uncertainty  in  I  it  is  in  the  nature  of  an  attempt,  but  it  is  so 
which  we  are  left  with  reference  to  the  posi- [manifestly  inchoate  and  elementary,  leaving 
tions  to  be  taken  by  the  Government,  and  the  i  so  wide  a  scope  for  the  working  of  that  linger- 
general  course  of  the  investigation  pursued,  j  ing  good  which  may  prompt  to  change  of  pur- 


THE    CONSPIRACY    TRIAL. 


335 


pose,  that  the  law  wisely  places  it  in  the  lower 
grade  of  offenses.  "All  indictable  attempts 
(says  Bishop,  vol.  1,  sec.  528),  whether  to  com 
mit  felony  or  misdemeanor,  are  misdemeanors. 

As  the  idea  of  capital  punishment  is  ordi 
narily  associated  with  that  of  felony,  though 
the  more  appropriate  idea  is  that  of  forfeiture 
of  property,  so  with  misdemeanor  is  associated 
the  punishment  of  fine  and  imprisonment  only. 
Says  Bishop,  vol.  1,  sec.  020:  "  The  ordinary  and 
appropriate  common  laio  punishment  for  misde 
meanor  is  fine  and  imprisonment,  or  either  of 
them,  at  the  discretion  of  the  Court.  It  is  in 
flicted  in  all  cases  in  which  the  law  has  not  pro 
vided  some  other  specific  penalty." 

So  much  for  the  case  of  a  conspiracy  to  com 
mit  a  felony.  How  is  it  with  a  conspiracy  to 
commit  treason  ? 

In  looking  at  this  charge  and  specification, 
one  may  doubt  whether  the  terms  "in  aid  of 
the  said  rebellion"  are  predicated  of  the  con 
spiring,  confederating,  and  combining,  or  of 
the  acts  charged  to  have  been  done  in  pursu 
ance  of  said  conspiracy  and  combination,  etc. 
Inasmuch  as  giving  aid  and  comfort  to  the 
enemies  of  the  United  States  is  one  form  of 
treason,  it  may  be  supposed  that  a  mere  unex 
ecuted  conspiracy  may  amount  to  giving  aid 
and  comfort  to  the  enemies  of  the  Government, 
and  thereby  become  treason,  and  it  may  be 
supposed  that  to  show  such  a  conspiracy  alone 
would  be  to  make  out  a  substantive  case  of 
treason,  and  that  a  party  might  be  convicted 
thereof  under  this  charge,  although  the  evi 
dence  might  show  him  to  be  not  guilty  of  the 
crimes  actually  perpetrated  in  pursuance  of 
the  alleged  conspiracy.  Let  us  inquire,  then, 
what  is  the  law  of  treason. 

The  murder  of  the  President  of  the  United 
States,  considered  in  itself,  is  no  more,  in  the 
eye  of  the  law,  than  the  murder  of  any  other 
citizen.  Whether,  however,  that  murder,  per 
petrated  for  the  very  object  of  overthi-owing 
the  Government  or  aiding  its  enemies,  is  trea 
son,  is  a  different  question.  I  do  not  require 
to  discuss  that  question.  I  pause,  however,  to 
remark  that  the  term  "enemies"  in  this  part  of 
the  Constitution,  has  been  understood  and  ad 
judged  to  mean  public  and  not  domestic  ene 
mies.  And  Congress  have  legislated  in  exact 
accordance  with  this  view ;  for  in  the  act 
to  suppress  insurrection,  to  punish  treason  and 
rebellion,  etc.,  of  July  17,  1802,  they  provide, 
in  the  first  section,  that  any  one  who  shall  com 
mit  the  crime  of  treason,  and  shall  be  adjudged 
guilty  thereof,  shall  suffer  death;  and  in  the 
second  section,  that  any  one  convicted  of  giving 
aid  and  comfort  to  the  existing  rebellion,  shall 
be  punished  by  fine  or  imprisonment,  or  both. 
But  whether  murder,  committed  with  the  intent 
charged,  is  treason,  either  in  the  sense  of  levy 
ing  war  or  of  giving  aid  and  comfort  to  the 
enemies  of  the  United  States,  is  immaterial  to 
my  present  purpose.  All  that  I  need  to  main 
tain  is,  that  a  mere  conspiracy  to  do  this  is  not 
treason. 

The  Constitution,  in  art.  3,  sec.  3,  declares 
that  treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and 


comfort,  and  no    person  shall  be  convicted  of 
treason    unless    on  the    testimony  of  two  wit 
nesses  to  the  same  overt  act,  or  on  confession  in 
open    court.     To   constitute  treason,  therefore, 
there  must  be  an  overt  act.     In  the  case  of  Bell 
man  and  Swartout,  4  6V.,  *$'.  C.  M.,  75,  in  which 
these  pariies    were   charged  with   levying  war 
against  the  United  States  in  combination  with 
Aaron  Burr,  the  Supreme  Court  said,    '-To  con 
stitute  that  specific  crime   for  which  the  priso 
ners  now  before  the  Court  have  been  committed, 
war  must  be  actually  levied  against  the  United 
States.     However   flagitious  may    be  the  crime 
of  conspiring  to  subvert   by   force  the  Govern 
ment    of  our   country,   such   conspiracy   is  not 
treason.     To  conspire  to  levy  war,  and  actually 
to   levy   war,  are   distinct   offenses.     The   first 
must  be  brought  into  open  action  by  the  assem 
blage  of    men   for   a   purpose    treasonable    in 
itself,  or  the  fact  of  levying  war  can  not  have 
been    committed.       Again,  "in    the    case    now 
before    the   Court,    a    design  to    overturn   the 
Government   of  the  United    States  in  New  Or 
leans  by  force    would    have    been,   unquestion 
ably,  a    design  which,   if  carried    into    execu 
tion,  would   have  been  treason,  and  the  assem 
blage  of  a  body  of  men  for  the  purpose  of  car 
rying  it  into  execution  would  amount   to  levy 
ing  war  against  the  United  States  ;  but  no  con 
spiracy  for  this  object,  no   enlisting  of  men  to  effect 
it,  would  be  an   actual    levying  of  war.      In    con 
formity  with  the  principles  now  laid  down,  have 
been    the   decisions    heretofore   made    by    the 
judges  of  the  United    States.     Judge  Chase,  in 
the  case    of  Fries,    stated    the  opinion    of    the 
Court  to  be,  "  that  if  a  body  of  people  conspire 
and  meditate  an  insurrection  to    resist  or  oppose  the 
execution   of  any    statute   of  the  United  States    by 
force,  they  are  only  guilty  of  a  high  misdemeanor  ; 
but  if  they  proceed  to  carry  such  intention  into 
execution  by  force,  they  are  guilty  of  the  trea 
son  of  levying  war,"    etc.     So  much  for  that 
species  of  treason  which  consists  of  levying  war. 
The  same  rule    prevails    as    to  the  other  form, 
viz. :   adhering  to  the  enemy,  and  giving  them 
aid    and  cuiiifort.     In     the    case   of  the    United 
States    vs.  Pryor,  3   Washington   Circuit  Court  Re 
ports,  p.  234,  in  which  the  accused  was  charged 
with  adhering   to  the  enemy,  and  giving  them 
aid  and   comfort]  by  purchasing  provisions  for 
them,  Judge  Washington  said:   "That  the  pris 
oner  went  from  the  British  seventy-four  to  the 
shore  with   an   intention   to  procure  provisions 
for  the   enemy,  is   incontestably  proved,    and, 
indeed,  is  not   denied  by  his   counsel.     If  this 
constituted   the   crime  of  treason,  the    motives 
which  induced  him  to  attempt  the  commission 
of  it,  and   by  which   there   are   the   strongest 
reasons  to  believe  he  was  most  sincerely  actu 
ated,  would    certainly  palliate  the  enormity  of 
it.     But  the    law    does  not   constitute   such  an 
act   treason,   even   although  these  motives  had 
not  existed  ;  and  although  intentions  and  feelings 
as  guilty  as  ever  stained  the    character  of  the  most 
atrocious  traitor  were    proved  against  the  pris 
oner,  can    it   be  seriously  urged  that  if  a  man, 
contemplating  an   adherence   to  the  enemy,  by  sup 
plying  them  with  provisions,  should  walk  toward  the 
market-house  to  purchase,  or  into  his  own  fields  to 
slaughter,  whatever  he  might  fmd  there,  but  should, 


336 


ARGUMENT    OF    WALTER    S.    COX. 


in  fact,  do  neither  the  one  nor  the  other  of  the  in 
tended  acts,  he  has  committed  an  overt  act  of  ad 
hering  to  the  enemy?  Certainly  not.  All  rests  in 
intention  merely,  which  our  law  of  treason,  in 
no  instance,  professes  to  punish." 

Thus  we  find  it  adjudged  by  the  highest  au- 
thoritieSjthatunder  our  Constitution,  mereinten- 
tion,  or  preparation,  or  conspiracy,  to  levy  war 
or  adhere  to  and  aid  and  comfort  the  enemies 
of  the  Government,  does  not  constitute  treason, 
but  misdemeanor  only,  and  Congress  seem  clearly 
to  recognize  this  view  in  their  legislation,  for 
by  the  act  entitled  "An  act  to  define  and  pun 
ish  certain  conspiracies,"  approved  July  21st, 
1861,  they  enact  "that  if  two  or  more  persons, 
within  any  State  or  Territory  of  the  United 

States,  shall  conspire  together  to  overthrow,  or   conspirator,  who  has  incited  and  procured  others, 

'  but  was  only  one  of  the  subordinates,  himself  in 


to  put  down,  or  to  destroy  by  force,  the  Govern 
ment  of  the  United  States,  or  to  levy  war 
against  the  United  States,  or  to  oppose  by 
force  the  authority  of  the  United  States,"  etc., 
"  each  several  person  so  offending  shall  be  guilty 
of  a  high  crime,  and  upon  conviction  thereof,  in 
any  District  or  Circuit  Court  of  the  United  States 
having  jurisdiction  thereof,  shall  be  punished 
by  a  fine  not  less  than  $500,  and  not  more  than 
$5,000;  or  by  imprisonment  with  or  without 
hard  labor,  as  the  court  shall  determine,  for  a 
period  not  less  than  six  months,  nor  greater 
than  six  years,or  by  bothfine  and  imprisonment." 

In  other  words,  the  offense  is  declared  to  be 
a  high  misdemeanor,  and  has  annexed  to  it,  by 
this  law,  the  punishment  appropriate  to  that 
degree  of  crime. 

It  results,  then,  that  a  mere  conspiracy  to  com 
mit  either  treason  or  felony,  in  this  country,  is  a 
mere  misdemeanor.  Of  course,  these  remarks 
apply  only  to  unexecuted  conspiracies.  If  the 
conspiracy  to  commit  treason  or  felony  be  exe 
cuted  by  the  actual  commission  of  the  intended 
crime,  it  is  held  that  the  misdemeanor  is  merged 
in  the  higher  crime.  And  the  law  is  conceded  to 
be,  that  if  parties  join  and  continue  in  a  con 
spiracy,  and  different  parts  are  assigned  to  the 
different  members,  and  are  executed,  wholly  or 
partially,  each  is  responsible  for  everything 
done  in  pursuance  of  the  common  design. 

But  if,  after  a  conspiracy  is  organized,  but 
unexecuted,  any  party  involved  therein  should 
withdraw  and  abandon  it,  and  refuse  to  have 
any  further  connection  with  it,  he  is  not  respon 
sible  for  any  act  done  by  the  others  in  prosecu 
tion  of  the  objects  of  the  conspiracy  afterwrard. 

A  conspirator  may  be  said  to  be  a  compound 
of  a  principal  and  an  accessory  before  the  fact. 
Conspirators  mutually  incite,  encourage,  advise 
and  instruct  each  other  to  the  commission  of  a 


commands  the  commission  of  a  crime — it  is  laid 
down  in  Whartoris  American  Criminal  Laio,  cit 
ing  1  Hale,  018,  that  "the  procurement  (by  an 
accessory)  must  continue  till  the  consummation 
of  the  offense,  for  if  ihe  procurer  of  a  felony  rc- 
pent,a,u(l  before  the  felony  is  committed  actually 
countermand  his  ordei-,  and  the  principal,  not 
withstanding,  commit  the  felony,  the  original 
contriver  will  not  be  an  accessory.''  The  con 
spirator,  then,  who  withdraws  from  a  con 
spiracy  before  the  same  is  executed,  is  in  the 
position  of  a  principal  who  has  repented  before 
acting,  and  of  a  procurer  who  has  incited  or 
ordered  a  crime,  and  withdrawnhis  order  before 
it  was  acted  upon.  And  his  case  is  evidently 
still  stronger  where  he  was  not  the  principal 


cited  and  procured  by  others,  and  where,  after 
yielding  for  the  time  to  their  influence,  he  with 
draws  from  and  resists  their  solicitations.  The 
responsibility  of  such  a  person  for  the  results  of 
the  conspiracy,  had  he  remained  in  it,  would 
have  been  less,  morally,  than  that  of  the  princi 
pal,  and  by  his  withdrawal  is  so  much  the  more 
easily  got  rid  of. 

Another  proposition  to  be  borne  in  mind  is, 
that  if  parties  conspire  for  one  object,  however 
criminal,  and  some  of  them  commit  a  crime  dif 
ferent  from  that  contemplated  by  the  original 
conspiracy,  the  others  are  not  involved  in  their 
guilt.  The  proposition  is  too  evident  for  argu 
ment.  An  illustration  of  it  is  found  in  1  Bishop 
on  Criminal  Law,  section  265.  He  says:  "Ob 
viously,  if  two  or  more  persons  are  lawfully  to 
gether,  and  one  of  them  commits  a  crime  with 
out  the  concurrence  of  the  others,  the  rest  arc 
not  thereby  involved  in  guilt.  So,  if  they  are 
unlawfully  together,  or  if  several  persons  are 
in  the  actual  perpetration,  by  a  concurrent  un 
derstanding,  of  some  crime,  and  one  of  them,  of 
his  sole  volition,  not  in  pursuance  of  the  main 
pm-pose,  does  another  thing  criminal,  but  in  no 
way  connected  with  this,  he  only  is  liable.  Thus, 
if  numbers  are  together,  poaching,  and  join  in 
an  attack  on  the  game- keeper  and  leave  him 
senseless,  then  if  one  of  them  returns  and  steals 
the  game-keeper's  money,  this  one  only  can  be 
convicted  of  the  robbery." 

So,  in  the  analogous  case  of  an  accessory,  it 
is  said  (1  Hale,  617),  "If  the  accessory  order  or 
advise  one  crime,  and  the  principal  intention 
ally  commit  anothei-,  as,  for  instance,  to  burn  a 
house,  and  instead  of  that  he  commit  a  larceny, 
or  to  commit  a  crime  against  A,  and  instead  of 
that  he  commit  the  same  crime  against  B,  the 
accessory  will  not  be  liable." 


These  are  the  general  principles  which  I  de 
sired  to  premise  in  reference  to  the  general  na 
ture  of  crimes,  and  which  might  be  applicable, 


crime,  and  are  thus  accessories  before  the  fact, 
and  at  the  same  time  each  expects  to  act  as 
principal  in  some  way  or  other. 

In  the  case  of  a  principal,  so  long  as  an  act  i  more  or  less  to  this  case. 
rests  in  bare  intention,  it  is  not  punishable.  So,  j  I  need  scarcely  add,  that  a  material  variance 
if  a  man  start  out  to  commit  a  crime,  as  in  the  between  the  charge  and  the  proof,  as  where  one 
case  put  by  Judge  Washington  in  the  case  J  crime  is  charged  and  another  proved,  is  fatal  to 
of  the  United  States  vs.  Pryor,  before  cited, !  the  prosecution,  and  entitles  the  accused  to  an 
of  a  man  going  to  market  to  purchase  provisons,  !  acquittal.  Thus,  if  a  burglary  be  alleged  to 
or  going  to  his  field  to  slaughter  cattle  for  {lie  |  have  been  committed  in  the  house  of  J.  Y.,  and 
enemy,  but  doing  neither  in  fact.  it  ttirned  out  in  evidence  to  be  the  dwelling- 

And   in   the  case  of  an  accessory  before  the   house  of  J.  S.,  the  defendant  must  be  acquitted 
fact — that  is,  one  who  counsels,   persuades  or  j  for  the  variance.     (Archbold,  95.) 


THE    CONSPIRACY   TRIAL. 


337 


So,  in  indictment  for  larceny  of  the  goods  of 
H,  when  they  were  proved  to  be  the  goods  of  H 
and  E,  the  variance  was  admitted  to  be  fatal. 
(Commonwealth ,  vs.  Trimmer,  1  Mass.  Rep.,  476.) 

So,  a  conspiracy  against  A  is  not  sustained 
by  proof  of  conspiracy  against  B  or  against  the 
public  generally.  (See  Wharton.)  So,  if  a  per 
son  be  indicted  for  one  species  of  killing,  as  by 
poisoning,  he  can  not  be  convicted  by  evidence 
of  u  species  of  death  entirely  different,  as  by 
shooting,  starving  or  strangling.  (1  Russell  on 
Crimes,  5-57.) 

Still  loss  can  a  conviction  be  had  by  proof  of 
an  offense  which  is  entirely  different  in  char 
acter.  , 

While  upon  an  indictment  for  a  murder  a  man 
may  be  convicted  of  manslaughter,  the  essential 
crime  being  the  homicide,  it  is  very  plain  that 
he  could  not  be  convicted  of  an  assault,  false 
imprisonment  or  abduction  ;  and  upon  a  charge 
of  conspiracy  to  murder,  he  could  not  be  con 
victed  of  conspiracy  to  imprison  or  to  abduct. 

The  same  rule  prevails  in  courts-martial.  Do 
Hart  says  (p.  364):  "It  is  a  distinction  which 
runs  through  the  whole  criminal  law,  that  it  is 
enough  to  prove  so  much  of  the  indictment  as 
shows  that  the  defendant  has  committed  a  sub 
stantive  crime  therein  specified;  but  the  offense, 
however,  of  which  he  is  convicted  must  be  of  the 
same  class  with  that  with  which  he  is  charged." 
The  general  principles  of  the  common  law  on 
this  subject  are  adopted  in  the  military  code. 

Let  us  next  consider  how  far  tribunals  sit 
ting  by  virtue  of  martini  law  can  depart  from 
the  established  law  of  the  land  in  its  distinc 
tions  between  crimes  and  in  its  scale  of  pun 
ishments. 

Military  law,  says  De  Hart  (p.  17),  is  a  rule 
for  the  government  of  military  persons  only ; 
but  martial  law  is  understood  to  be  that  state  of 
things  when,  from  the  force  of  circumstances, 
the  military  law  is  indiscriminately  applied  to 
nil  persons  whatsoever.  And  Greenleaf  says 
(vol.  3,  p.  409,  etc.):  "It  [martial  law]  extends 
also  to  a  great  variety  of  cases  not  relating  to 
the  discipline  of  the  army,  such  as  plots  against 
the  sovereign,  intelligence  to  the  enemy,  and 
the  like.  It  is  founded  on  paramount  necessity, 
and  is  proclaimed  by  a  military  chief,  and  when 
it  is  imposed  upon  a  city  or  other  territorial 
district,  all  their  inhabitants  and  all  their  ac 
tions  are  brought  within  the  sweep  of  its  do 
minion."  Almost  everything  in  the  shape  of 
authority  on  the  subject  of  martial  law  relates 
to  that  law  as  exercised  in  a  foreign  and  hostile 
country.  Even  in  tha^  case  it  has  certain  lim 
itations. 

General  Halleck,  in  his  work  on  international 
law  and  the  laws  of  war,  in  treating  of  the 
effects  of  military  occupation,  says  (chap.  32, 
sec.  6): 

"Although  the  laws  and  jurisdiction  of  the 
conquering  State  do  not  extend  over  such  for 
eign  territory,  yet  the  laws  of  war  confer  upon 
it  ample  power  to  govern  such  territory,  and  to 
punish  all  offenses  and  crimes  therein,  by 
whomsoever  committed.  The  trial  and  punish 
ment  of  the  guilty  parties  may  be  left  to  the 
ordinary  courts  and  authorities  of  the  country, 
or  they  may  be  referred  to  special  tribunals 

22 


organized  for  that  purpose  by  the  Government 
of  military  occupation,  etc.  It  must  be  re 
membered  that  the  authority  of  such  tribu 
nals  has  its  source  not  in  the  laws  of  the  con 
quering,  nor  in  those  of  the  conquered  State, 
but,  like  any  other  powers  of  the  Government 
of  military  occupation,  in  the  IP.WS  of  war; 
and  in  all  cases  not  provided  for  by  the  laws  ac 
tually  in  force  in  the  conquered  territory,  such  tri 
bunals  must  be  governed  and  guided  by  the 
principles  of  universal  public  jurisprudence." 

This  plainly  implies  that  wh*re  the  cases  are 
provided  for  by  the  local  law,  that  should  guide 
in  the  administration  of  criminal  justice. 

Professor  Lieber,  in  his  Instructions  for  the 
Government  of  the  Armies  of  the  United  States 
in  the  Field,  adopted  by  the  War  Department, 
says: 

"  Martial  law  in  a  hostile  country  consists  in 
the  suspension  by  the  occupying  military  authority 
of  .the  criminal  and  civil  law  and  of  the  domestic 
administration  and  government  in  the  occupied 
place  or  territory,  and  in  the  substitution  of  mili 
tary  rule  and  force  for  the  same,  as  well  as  in  the 
dictation  of  general  laws,  as  far  as  military  ne 
cessity  requires  this  suspension,  substitution,  or 
dictation.1' 

And  Benet,  p.  14,  thus  lays  down  the    rule: 

"  Martial  law,  then,  is  that  military  rule  and 
authority  which  exists  in  time  of  war  in  rela 
tion  to  persons  and  things  under  and  .within  the 
scope  of  active  military  operations  in  carrying  on 
the  war,  and  which  extinguishes  or  suspends  civil 
rights  and  the  remedies  founded  on  them,  for  the 
time  being,  so  far  as  it  may  appear  to  be  necessary  in 
order  to  the  full  accomplishment  of  the  purpose  of 
the  war,  the  party  who  exercises  it  being  liable  in 
an  action  for  any  abuse  of  the  authority  thus  con 
ferred.  It  is  the  application  of  military  govern 
ment — the  government  of  force — to  persons  and 
property  within  the  scope  of  it,  according  to 
the  laws  and  usages  of  war,  to  the  exclusion  of 
the  municipal  Government  in  all  respects 
where  the  latter  ivould  impair  the  efficiency  of  mili 
tary  law  or  military  action" 

The  exercise  of  martial  law  is  capable  of 
being  abused.  It  must,  therefore,  have  some 
limits.  It  has  no  code  but  one  single,  vital, 
fundamental  principle,  which  is  alike  its  justi 
fication  and  its  limit;  and  that  is,  necessity — 
not  state  nor  political  necessity,  but  military 
necessit}'.  It  is  the  same  principle  announced 
by  Sir  Boyle  Roche,  a  member  of  the  Irish 
Parliament  and  a  breeder  of  Irish  bulls,  who, 
in  the  debate  on  the  suspension  of  the  habeas 
corpus  act,  said  "  he  was  in  favor  of  surrender 
ing  a  part  of  the  Constitution,  and  even  the 
whole  of  it  if  necessary,  in  order  to  save  the 
remainder/'  As  this  alone  justifies  the  sus 
pension  of  the  civil  law  of  the  land  at  all,  so 
that  suspension  can  not  be  legitimately  carried 
further  than  is  necessary  to  the  efficiency  of 
military  action  or  military  law — i.  e.,  of  the  law 
governing  the  military  force. 

If  this  is  true  of  a  military  occupation  of  an 
enemy's  country,  how  infinitely  more  binding 
in  the  case  of  martial  law  prevailing  at  home ! 
When  an  enemy's  country  is  conquered,  all  po 
litical  powers  therein  cease,  and  a  suspension 
of  judicial  functions  also  generally  results. 


338 


ARGUMENT    OF    WALTER   S.    COX. 


There  must  be  offenses  unprovided  for  in  such  \  crimes,  and  in  its  measure  of  punishment.     To  dis- 
a  state  of  things  which  can  only  be  taken  cog-  regard  it  without   overruling   military    neces- 


nizance  of  by  military  courts  established  in 
virtue  of  the  martial  law,  which  is  established 
and  proclaimed  by  the  very  presence  of  a  hos- 


sity,  is  unnecessarily  to  infringe  public  and 
private  rights,  and  this  is  military  oppression, 
which  Professor  Lieber  says  is  not  martial  law, 


tile  army.     Of  course,    revolts,   insurrections,  j  but  is  the  abuse  of  the  power  that  law  confers. 


and  plots  against  the  conquering  power  would 
be  wholly  unprovided  for  in  the  laws  of  the 
conquered  State,  and  must  be  necessarily  dealt 
with  bv  martial  law.  But  all  this  is  different 


Granting,  then,  for  the  sake  of  argument, 
that  at  the  time  of  the  President's  assassina 
tion,  when  the  rebellion  was  not  yet  subdued, 
when  it  was  possible  for  its  flickering  and  ex- 


when  martial  law  exists  at  home.  Treason,  j  piring  hopes  to  be  revived  by  this  startling 
conspiracy,  murder,  in  short,  every  crime,  is  j  event,  when  the  mysterious  plot  seemed  to  be 
already  provided  for  by  the  civil  law.  When  j  aimed  directly  at  the  power  of  the  Government 
the  law  martial  undertakes  to  deal  with  such  j  to  effect  the  purpose  of  the  war,  to  suppress 
offenses,  it  finds  them  already  accurately  de- j  the  rebellion  and  perpetuate  its  own  existence, 
fined  in  the  written  or  common  law  of  the 
land,  and  the  appropriate  punishment  affixed 


by  the  same.  It  may  find,  and  it  certainly 
does  find  in  the  present  case,  legal  courts  duly 
constituted  and  in  unobstructed  operation.  It 
invades  the  domain  of  the  latter,  wrests  from 
them  their  jurisdiction,  and  seeks  to  deal  with 
crimes  which,  I  may  say,  it  does  not  under 
stand,  for  which  it  has  no  definitions,  no  grad 
uated  scale  of  penalties. 


it  was    necessary  to  employ    the   machinery  of 
martial  law  to  pursue  and  bring  to  justice  the 


perpetrators  of  the  murder,  and  on  account  of 
difficulties,  supposed  or  real,  in  the  trial  of  the 
accused  in  a  civil  court,  to  subject  them  to  a 
trial  by  a  military  commission,  still  the  ques 
tion  recurs,  how  is  this  commission  to  deal 
with  the  accused?  Now  that  "grim-visaged 
war  hath  smoothed  his  wrinkled  front,"  that 
bruised  arms  are  hung  up  for  monuments," 


Clearly,  nothing  can  justify  this  but  the  that  the  only  military  action  in  progress  con- 
most  urgent  military  necessity,  and  the  •  sists  in  the  disbanding  and  dispersion  of  the 
requirements  of  active  military  operations  must  be  |  national  forces,  that  even  the  rancors  of  civil 


the  measure  of  that  departure  from  the  civil  law, 
which  would  be  legitimate  and  which  could  not 
be  taken  notice  of  subsequently,  by  that  law, 
as  an  abuse. 

In  a  beleaguered  city,  under  martial  law,  one 
who  is  detected  in  signaling  the  enemy,  or  do 
ing  any  thing  to  cripple  the  defenders,  secretly 
or  openly,  may  be  shot  down  without  trial,  or 


strife  are  yielding  to  an  universal  aspiration 
for  peace  and  fraternal  union,  can  any  man, 
on  his  conscience,  say,  that  any  military  exi 
gency  requires  this  Commission  to  ignore  the 
law  of  the  land  in  regard  to  crimes  and  pun 
ishments,  to  condemn  and  punish,  as  treason, 
that  which  is  not  treason  by  the  Constitution; 
to  confound  felonies  with  treason  on  the  one 


dealt  with  by  a  military  commission*  in  the  side,  or  misdemeanors,  on  the  other;  to  try  for 
most  summary  way.  But  no  one  would  main-!  one  offense  and  convict  of  another;  to  inflict 
tain  that  such  a  commission  could  place  a  petty  punishments  disproportionate  to  the  crime,  in 


larceny,  by  a  civilian,  on  the  same  footing  as 
murder,  and  visit  it  with  the  death  penalty.  It 
would  be  a  criminal  abuse  of  power,  simply 
because  wholly  \mneccssary  to  the  efficiency  of 
military  operations.  And  even  acts  of  mili 
tary  hostility,  committed  during  a  period  of 
invasion  and  siege,  could  not,  after  the  enemy 
is  repulsed,  the  siege  raised,  the  danger 
passed,  be  punished  by  summary  execution 
without  trial. 

The  argument  on  this  head  may  be  summed 
up  thus:  The  law  of  the  land  defines  certain 
crimes.  It  establishes  a  distinction  and  grada 
tion  among  them,  and  visits  them  with  appro 
priate  punishments.  It  also  establishes  the 
mode  in  which  the  accused  shall  be  tried,  and 
certain  guarantees  of  fairness  and  justice. 
These  distinctions  between  crimes  and  punish 
ments  and  these  guarantees  are  the  right  alike 
of  the  innocent  and  guilty,  the  injured  public 
and  the  accused.  If  it  be  absolutely  necessary 
to  the  repulse  of  a  foreign  or  the  reduction  of 
a  domestic  enemy,  by  the  military  power  of  the 
country,  persons  within  the  scope  of  its  opera 
tions  may  be  both  tried  and  punished  in  a  man 
ner  different  from  the  course  of  the  civil  law. 
But  without  such  necessity  they  can  not  be  so 
tried.  And  if  the  situation  require  such  trial, 
still,  without  such  necessity,  the  military  authority 
can  not  ignore  but  must  adhere  to,  observe,  and  be 
guided  by  the  civil  laic,  in  its  distinctions  between 


view  of  the  proportion  between  them  estab 
lished  by  the  common  law  and  universal  un 
derstanding?  Most  clearly  not.  It  will  not 
do  to  assume  that  martial  law,  once  conceded  to 
be  in  force,  has  no  limit.  It  is  begging  the 
whole  question  to  assume  that  to  concede  the 
necessity  of  martial  law  is  to  concede  the  ne 
cessity  of  all  its  rigors  and  harsh  contrasts 
with  the  civil  law.  In  the  able  argument  of 
Judge-Advocate  Burnett  on  the  plea  of  juris 
diction,  on  the  trial  of  the  Chicago  conspir 
ators,  he  says: 

"  Martial  law  can  never  be  restricted  by  any 
defined  lines,  because  it  is  the  law  of  necessity, 
the  law  of  self-defense,  of  self-preservation  ;  it 
is  a  law  to  meet  the  exigencies  and  necessities  of 
great,  unexpected  emergencies  in  time  of  war ;  and 
whatever  law  or  rule  of  action  becomes  neces 
sary  to  meet  these  emergencies  is  martial  law." 

He  also  cites  Professor  Greenlcaf,  who,  in 
speaking  of  the  difference  between  martial  and 
military  law,  says  : 

"The  tribunals  of  both  are  alike  bound  by 
the  common  law  of  the  land  in  regard  to  the  rules 
of  evidence,  as  well  as  to  other  rules  of  laiv,  so  far 
as  they  are  applicable  to  the  manner  of  proceeding;" 
and  adds:  "As,  for  illustration,  martial  law, 
as  now  being  administered,  is,  giving  these 
prisoners  a  fair,  impartial  hearing,  according 
to  the  strict  rules  of  the  civil  law,  in  all  ques 
tions  of  evidence,  argument,  etc.;  it  gives  them 


THE    CONSPIRACY    TRIAL. 


339 


(lie  benefit  of  counsel,  of  processes  to  compel  the  !  proven,  and  in  affixing  a  punishment  to  it,  to 
attendance   of    witnesses;    it    allows    them    a  f  follow  and  be  guided   by  the  law  of  the  land, 


clear  and  public  trial,  in  open  day,  before  their 
peers,  and  before  just  and  honorable  men.  But 
under  other  circumstances  and  greater  emer 
gencies,  it  might  have  demanded  that  they  be 
shot  down  in  the  streets,  and  without  trial  and 
without  hearing,  as  in  case  they  had  gone  for 
ward  in  this  conspiracy,  attacked  our  camps, 
undertaken  to  release  our  prisoners,  and  burn 
the  city." 


as  administered  in  the  civil  courts. 

The  application  of  these  general  principles 
I  shall  reserve  until  I  shall  have  discussed  the 
evidence. 

The  evidence  oifers  a  very  wide  field  to  one 
inclined  to  collate,  weigh,  and  comment  on  it, 
in  detail,  but  I  shall  notice  only  so  much  as 
seems  material  to  my  case. 

First,  then,  what  are  some  of  the  facts  in  re- 


Now,  on  what  ground  can  martial  law  admitllation  to  the  alleged  conspiracy?     The  assassi- 
a  trial  at  all?     On  what  ground  can  its  courts   nation  of   the  President    and  other  heads  of 


be  bound  to  observe  the  common  law  rule  of  ev 
idence  and  proceeding?  On  no  other  but  this: 
That,  by  the  law  of  the  land,  this  is  one  of  the 
rights  of  the  accused  of  which  he  can  not  be 
deprived,  unless  there  be  a  military  necessity 
for  it.  But  what  reason  is  there  applicable  to 
form,  which  does  not  apply,  with  ten-fold  force, 
to  matters  of  substance?  If  the  accused  is  en 
titled  to  be  tried  according  to  the  forms  of  the 
common  law,  as  far  as  applicable,  how  much 
more  is  he  entitled  to  be  judged  and  punished 
according  to  that  law,  where  no  departure  from 
it,  in  that  respect,  is  required  by  any  military 
emergency. 

But  the  Government  officers  seem  to  have 
tasked  their  ingenuity  to  invent  a  new  species 
of  crime — traitorous  murder,  traitorous  con 
spiracy—murder  which  is  something  more  than 
murder,  yet  something  less  than  treason;  a 
hybrid  between  them,  partaking  of  both.  On 
the  same  principle,  stealing  a  percussion  cap, 
with  intent  to  use  it  against  the  Government, 
would  be  traitorous  larceny,  instead  of  petty 
larceny.  And  when  we  inquire  by  what  code 
it  is  to  be  judged  and  punished,  we  are  re 
ferred  to  the  common  law  of  war. 

The  common  law  of  war!  What  a  convenient 
instrument  for  trampling  upon  every  constitu 
tional  guarantee,  every  sacred  right  of  the  citi 
zen!  There  is  no  invention  too  monstrous,  no 
punishment  too  cruel,  to  find  authority  and 
sanction  in  such  a  common  law.  Is  it  possible 
that  American  citizens  can  be  judged  and  pun 
ished  by  an  unwritten  code,  that  has  no  defini 
tions,  no  books,  no  judges  or  lawyers;  which, 
if  it  has  any  existence,  like  the  laws  of  the 
Roman  Emperor,  is  hung  up  too  high  to  be 
read  ? 

I  deny  that  the  common  law  of  war  has  any 
thing  to  do  with  treason,  or  anything  traitor 
ous,  as  such.  Treason,  in  any  shape,  is  an 
offense  against  the  civil  government.  The  acts 
constituting  the  offense  are  dealt  with  by  mar 
tial  law,  not  as  treason,  but  only  as  they  inter 
fere  with  military  rule  and  operations.  Such 
offenses  as  those  charged  are  unknown  to  any 
common  law  of  war.  In  short,  the  only  com 
mon  law  of  war,  which  can  be  admitted  in  this 
country  against  civilians,  is  the  common  law 
of  the  land,  so  far  modified,  only,  as  the  mili 
tary  emergency  of  the  hour  requires. 

I  conclude,  then,  that,  supposing  this  Com 
mission  to  have  lawful  jurisdiction  over  the 
persons  of  the  accused,  for  the  purpose  of  try 
ing  them  upon  this  charge,  still  the  Commis 
sion  are  bound,  in  ascertaining  the  nature  of 
the  offense  made  out  by  the  evidence,  if  any  be 


Government,  may  have  been  discussed  in  the 
South,  as  a  measure  of  ultimate  resort,  to  re 
trieve  the  fortunes  of  the  Confederacy,  when 
at  their  lowest  ebb;  the  rebel  agents  in  Canada 
may  have  individually  signified  their  approval 
of  the  measure,  in  the  abstract,  long  since; 
but  I  undertake  to  maintain,  upon  the  evidence, 
that  there  never  was  any  final  determination 
on  the  part  of  any  person  or  persons,  with 
whom  any  of  these  accused  can  possibly  be 
connected,  actually  to  attempt  the  life  of  the 
President,  or  other  functionary,  until  a  few 
days — about  one  week — before  the  murder;  that 
no  conspiracy  for  that  object,  such  as  is  charged 
against  the  accused,  was  formed,  or,  at  least, 
had  any  active  existence,  at  any  time  during 
the  month  of  March,  as  imputed  in  the  charge 
and  specification;  and  that  if  any  conspiracy 
had  ever  been  organized,  for  such  object,  at  an 
earlier  period,  it  did  not  contemplate  the  event, 
otherwise  than  contingently,  and  upon  a  con 
tingency  which  never  arrived  until  the  period 
I  have  named,  and  was,  meanwhile,  completely 
in  suspense  and  abeyance. 

The  specification  imputes  that  the  accused 
were  incited  and  encouraged  to  the  murder  by 
Davis,  Thompson,  Clay,  and  others,  and  this  is 
of  the  very  essence  of  the  charge. 

The  theory  of  the  prosecution  is,  that  Booth, 
who  is  acknowledged  to  have  been  the  head, 
and  front,  and  soul  of  the  conspiracy,  if  there 
was  one,  was  only  the  hireling  tool  of  these 
rebel  emissaries.  I  think  he  was  probably 
something  more,  but  it  will  not  vary  the  result. 
I  think  he  was  probably  actuated  not  only  by 
the  sordid  hope  of  reward,  but  by  a  misguided, 
perverted  ambition.  Of  moderate  talents,  but 
considerable  ambition,  of  strong  will  and  pas 
sions,  and  high  nervous  organization,  accus 
tomed  to  play  parts,  and  those  of  a  tragic 
character,  he  had  contracted  perverted  and 
artificial  views  of  life  and  duty,  and  aspired 
to  be  the  Brutus,  in  real  life,  that  he  had  been 
or  seen  on  the  boards.  He  well  knew,  how 
ever,  that  the  act  he  contemplated  would  be  ex 
ecrated  all  the  world  over,  except,  possibly, 
among  those  whom  he  intended  to  serve.  There 
fore,  whether  pecuniary  reward  or  false  glory 
was  his  object,  he  could  hope  for  neither  until 
he  was  secure  of  their  approbation.  Whatever 
his  principle  of  action,  he  was  wholly  without 
motive  for  so  desperate  an  undertaking  until 
he  had,  or  supposed  he  had,  the  approval  of  the 
rebel  authorities.  When  does  the  evidence 
tend  to  show  that  this  was  given?  On  this 
subject  three  principal  witnesses  have  testified 
for  the  Government.  None  of  them  carry  far- 


ARGUMENT    OF    WALTER   S.    COX. 


the-  back  than  January  last,  the  date  when 
evcii  an  individual  approval  of  the  scheme  of 
assassination  was  expressed  by  any  of  the 
rebel  agents  in  Canada.  The  first  witness. 
Richard  Montgomery,  represents  Jacob  Thomp 
son  as  saying,  in  the  summer  of  18G4,  that  he 
had  his  agents  throughout  the  Northern  States, 
and  could,  at  any  time,  have  President  Lincoln, 
or  any  of  his  advisers,  put  out  of  the  way.  But 
it  was  only  in  the  middle  of  January  last  that 
Thompson  informed  him  that  a  distinct  propo 
sition  for  the  President's  assassination  had 
been  made  to  him,  and  that  he  was  in  favor  of 
it,  but  was  determined  to  defer  his  answer  until 
he  had  consulted  his  Government,  at  Richmond, 
and  he  was  then  only  waiting  their  approval. 
Although  the  witness  was  in  constant  inter 
course  with  those  men  in  Canada,  going  back 
and  forth,  until  shortly  before  his  testimony 
was  given,  he  was  not  able  to  state  when  these 
rebel  agents  considered  themselves  authorized 
to  act  in  this  matter.  But  in  a  conversation 
with  Tucker,  a  few  days  after  the  assassination, 
the  latter  said,  "it  was  too  bad  that  the  boys 
had  not,  been  allowed  to  act  when  they  wanted 
to,"  which  would  indicate  that  the  approval 
waited  for  from  Richmond  was  not  received  in 
time  for  earlier  action,  and  this  the  witness 
distinctly  states  to  be  his  impression.  He  in 
ferred  from  Tticker's  remark  that  the  approval 
had  been  received,  and  that  the  attempt  had 
been  delayed  for  its  arrival. 

In  all  this,  Montgomery  agrees  exactly  with 
Conover.  The  latter  states  that  Thompson 
spoke  to  him  in  February  on  the  subject  of  the 
removal  of  the  President  and  others  from  office, 
by  killing  them,  and  offered  him  the  chance  of 
immortalizing  himself  and  saving  the  country 
by  embarking  in  the  enterprise;  that  these 
conversations  were  repeated  all  through  the 
month  of  February,  and  in  that  month  he 
stated  he  was  awaiting  dispatches  from  Rich 
mond.  The  witness  inquired  if  he  thought  the 
plan  would  receive  the  approbation  of  the  Gov 
ernment  at  Richmond,  and  Thompson  replied 
that  he  thought  it  would,  but  he  would  know  in 
a  few  days.  The  witness  knew  nothing  of  the 
arrival  of  such  dispatches,  until  about  the  Oth 
or  7th  of  April,  when  Surratt  arrived  in  Can 
ada  with  dispatches  from  Mr.  Benjamin  and 
Mr.  Davis.  The  witness  was  present  in  Thomp 
son's  room,  with  Surratt,  when  Thompson  laid 
his  hand  upon  the  papei'S,  brought  by  the  latter 
from  Richmond,  and  said,  "This  makes  the 
thing  all  right,"  referring,  as  the  witness  says, 
to  the  assent  of  the  Richmond  authorities,  that  is, 
to  the  assassination  project.  On  cross-exam 
ination  the  witness  says  distinctly  that  he  un 
derstood  this  to  be  the  first  official  approval  they 
had  received  from  Richmond  of  the  plan  to  assas 
sinate  the  President,  and  he  fcjiew  of  no  other. 

And  this  evidence,  as  far  as  it  fixes  the  date 
of  Surratt' s  arrival  in  Canada,  and  its  probable 
object,  is  corroborated  by  Wcichmann,  who  has 
testified  that  Surratt  arrived  in  Washington, 
from  Richmond,  on  the  3d  of  April,  with  money 
in  his  pocket,  and  professing  to  have  seen  Ben 
jamin  and  Davis,  and  to  have  been  assured  by 
them  that  Richmond  would  not  be  evacuated, 
and  that  he  left,  on  the  same  evening,  for  Mon 


treal,  where  lie  would  probably  arrive  on  the 
5th  or  Oth. 

There  is  an  apparent  discrepancy  between 
the  testimony  of  Dr.  Merritt  and  that  of  Cono 
ver,  which  I  here  proceed  to  notice. 

He  represents  that  he  was  present  at  a  meet 
ing  of  a  number  of  the  rebel  emissaries,  in 
Montreal,  in  the  middle  of  February  last,  at 
which  George  N.  Sanders,  after  discussing  the 
projected  assassination,  read  a  letter  which  he 
said  he  had  received  from  "the  President  of  our 
Confederacy,"  meaning  Jefferson  Davis,  ex 
pressing  approbation  of  whatever  measures 
they  might  take  to  accomplish  the  object.  Con- 
over,  on  the  other  hand,  had  had  conversations 
with  Thompson  all  through  the  month  of  Feb 
ruary,  and  no  dispatches  had  then  arrived  of 
the  purport  stated  by  Merritt.  But  that  Mer 
ritt  is  wholly  mistaken,  and  his*  testimony 
wholly  unreliable,  in  this  particular,  is  clear, 
from  several  considerations: 

First.  The  witness  did  not  read  the  letter, 
nor  does  he  pretend  to  repeat  its  language,  nor 
can  he  distinguish  very  clearly  between  the 
language  of  the  letter  and  that  of  Sanders 
himself.  He  says,  at  first :  "Which  letter  just 
ified  him  (Sanders)  in  making  any  arrange 
ments  that  he  could  to  accomplish  the  object.' 
This  was  the  witness'  construction  of  the  let 
ter,  not  its  terms.  When  asked  for  its  lan 
guage  he  could  not  give  a  word  of  it,  but  said 
it  was  in  substance,  "That  if  the  people  in 
Canada  and  the  Southerners  in  the  States  were 
willing  to  submit  to  be  governed  by  such  a  ty 
rant  as  Lincoln,  he  did  not  wish  to  recognize 
them  as  friends  or  associates,  or  something 
like  that."  This  was  the  whole  of  the  witness' 
unprompted  account  of  the  substance  of  the 
letter.  He  is  asked,  however,  the  leading 
question,  "And  you  say  that  in  that  letter  he 
expressed  his  approbation  of  whatever  meas 
ures  they  might  take  to  accomplish  this  object?' 
To  this  he  answers,  "Yes.1  But  he  had  said 
nothing  of  the  sort.  Tic  had  merely  said  that 
the  letter  justified  such  measures.  Still  later  lie 
says:  "When  he  (Sanders)  read  the  letter  he 
spoke  of  Mr.  Seward,  and  /  inferred  that  that 
was  partially  the  language  of  the  letter  •  I  think 
it  was,  that  if  those  parties,  the  President,  Vice- 
President  and  Cabinet,  or  Mr.  Seward,  could 
be  disposed  of,  it  would  satisfy  the  people  of 
the  North  that  they  (the  Southerners)  had 
friends  in  the  North,  and  that  a  peace  could 
be  obtained  on  better  terms  than  it  could  other 
wise  be  obtained,"  etc.  It  will  be  found  that, 
in  the  course  of  his  testimony,  he  gives  three 
lifferent  versions  of  the  substance  of  the  letter. 
lie  does  not  pretend  to  say  the  assassina 
tion  was  mentioned,  in  terms,  in  the  letter, 
and  he  is  evidently  unable  to  distinguish 
clearly  between  the  language  of  Sanders  and 
that  of  Davis,  and,  on  the  whole,  we  arc  left  in 
complete  uncertainty  whether  we  have  the  con 
clusions  of  the  witness  or  those  of  Jefferson 
Davis. 

But,  secondly,  it  is  perfectly  certain  that  Jef 
ferson  Davis  never  would  have  written  such  a 
letter  as  this  is  described  to  be,  to  George  N. 
Sanders.  It  is  apparent,  from  the  whole  testi 
mony,  that  Jacob  Thompson  and  Clement  C. 


THE    CONSPIRACY   TRIAL. 


341 


Clay  were  the  principal  emissaries  of  the  rebel 
Government  in  Canada.  They  represented 
themselves  to  Montgomery  to  be  invested  with 
full  powers  to  do  anything  they  might  deem 
expedient  for  the  benefit  of  their  cause.  Thomp 
son  seemed  to  have  had  the  principal  finnncial 
agency,  though  Clay  is  also  said  to  have  had 
the  funds  used  in  the  frontier  raids.  Thomp 
son  certainly  was  the  controlling  authority  in 
regard  to  the  assassination;  the  proposition 
was  made  to  him,  he  consulted  his  Government 
and  expected  their  approval.  No  others  than 
these  professed  to  have  any  authority  or  con 
trol  over  the  frontier  operations  ;  and  Sanders 
evidently  acted  a  subordinate  part  and  had 
the  entire  confidence  of  no  one,  Clay  describing 
him  as  a  very  good  man  to  do  their  dirty  work, 
but  not.  one  to  whom  everything  could  be  safely 
communicated.  It  was,  therefore,  of  all  things, 
one  of  the  most  unlikely,  that  a  dispatch,  so 
important  as  the  one  described  by  the  witness, 
would  be  addressed  by  Davis  to  Sanders. 

Thirdly.  It  was  equally  unlikely  that  Thomp 
son  and  Clay  would  not  even  be  privy  to  the 
fact,  but  would  be  actually  excluded  from 
the  confidence  of  Davis  arid  Sanders.  And 
yet,  if  the  witness  is  correct,  this  is  the  case. 
For  when  he  is  called  on  to  repeat  the  names 
of  those  present  at  the  meeting  at  which  San 
ders  read  his  confidential  missive,  he  names  ten 
persons,  but  omits  both  Thompson  and  Clay. 
In  proof  that  this  omission  was  intentional  and 
not  accidental,  it  is  to  be  noted,  that  the  wit 
ness  afterward  spoke  to  Clay  in  Toronto  about 
the  letter  Sanders  had  read  in  Montreal,  and 
states,  as  a  noteworthy  fact,  that  Clay  seemed 
to  understand  the  nature  and  character  of  the 
letter,  which  remark  would  never  have  occurred 
to  the  witness,  had  Clay  been  present  and  heard 
the  letter  read,  and  handled  and  perused  it 
himself  when  it  was  passed  round  at  the  meet 
ing,  as  he  says  it  was. 

But  finally,  on  this  head,  the  testimony  of 
this  witness,  as  to  the  subsequent  proceedings 
of  the  rebel  agents,  clearly  corroborates  Con- 
over.  It  is  clear,  that  no  steps  were  taken  on 
the  strength  of  this  letter  of  Davis,  in  pursu 
ance  of  the  object  supposed  to  be  sanctioned  by 
it,  for  nearly  two  months  afterward.  But  the 
witness  Merritt  states,  that  he»was  in  Toronto, 
on  the  5th  and  Gth  of  April ;  that  on  the  6th, 
he  met  Harper  and  several  other  rebels,  and 
Harper  told  him  they  were  going  to  the  States, 
and  were  going  to  kick  up  the  damnedest  row 
that  had  ever  been  heard  of  yet,  and  after 
ward  said,  that  if  lie  [the  witness]  did  not 
hear  of  the  death  of  Old  Abe,  of  the  Vice- 
President,  and  of  General  Dix  in  less  than  ten 
days,  he  might  put  him  [Harper]  down  as  a 
damned  fool.  He  afterward  ascertained  that 
Harper  had  in  fact  left  on  the  8th  of  April  for 
the  States. 

Now,  it  will  be  remembered  that,  according 
to  Weichmann,  Surratt  passed  through  Wash 
ington  on  the  3d  of  April  for  Canada,  where 
he  probably  arrived  on  the  5th,  and  that,  on 
the  Gth  or  7th,  according  to  Conover,  Jacob 
Thompson  spoke  of  the  dispatches  carried  by 
him  as  conveying  the  needful  authority.  This 
f  tct  could  easily  be  communicated,  by  telegraph 


to  the  rebels  in  Toronto,  and  there  is  a  perfect 
correspondence  between  their  declarations  and 
actions,  on  the  Gth  of  April  and  after,  and  Con- 
over's  story,  that  the  sanction  of  the  Richmond 
authorities  to  the  assassination  scheme  was 
communicated,  for  the  first  time,  in  the  dis 
patches  carried  by  Surratt  to  Canada,  about  the 
5th  of  April.  Thus,  in  the  end,  there  is  seen  to 
be  a  substantial  accord  between  all  the  three 
witnesses,  on  the  important  question,  when  the 
formal  sanction  of  the  Richmond  authorities 
was  received  in  Canada,  and  when,  consequent 
ly,  for  the  first  time,  they  were  in  a  condition 
to  give  their  formal  and  official  approval  to 
the  proposed  assassination. 

By  whom  the  proposition  was  originally 
made  to  Thompson  is  involved  in  profound  mys- 
tery,  or,  at  most,  is  left  to  conjecture.  If  it 
came  from  Booth,  both  his  conduct  and  that 
of  the  rebel  band  in  Canada  show  that  it  was 
a  mere  offer,  unaccepted,  unacted  upon,  and 
that  its  acceptance,  and  the  granting  the  au 
thority  it  invited,  was  an  open  question,  from 
the  month  of  December  to  the  5th  of  April. 
Booth  was  reported  to  have  been  in  Canada  in 
the  fall,  and  as  late  as  December  last,  but  since 
that  time  none  of  the  testimony  shows  any 
immediate  intercourse  between  him  and  the 
rebel  emissaries  there.  And  although  Harper, 
Caldwell,  and  Randall,  and  Ford  are  mentioned 
by  Merritt,  as  parties  whom  he  understood  to 
be  implicated  in  the  plot,  we  hear  of  no  stir  or 
activity  among  them  until  the  Gth  of  April. 
It  seems,  therefore,  very  clear,  upon  this  tes 
timony,  that  this  date  was  the  earliest  period 
at  which  any  positive  design  was  formed  for 
the  assassination. 

The  testimony  of  Mrs.  Mary  Hudspeth  may 
seem  to  conflict  with  this  theory,  and,  therefore, 
requires  some  examination.  That  she  is  sin 
cere  in  her  statements,  I  have  no  reason  to 
doubt;  but  that  she  is  mistaken  seems  to  me 
very  probable.  In  the  month  of  November 
ast,  she  saw  two  strangers,  whom  she  had  never 
net  before,  and  has  never  met  since,  in  a  street 
car  in  New  York  city,  one  of  them  disguised 
3y  false  whiskers.  Some  six  months  afterward, 
she  is  shown  a  photograph  taken  of  Booth, 
without  disguise,  and  undertakes  to  recognize 
tas  that  of  one  of  the  persons  in  question. 
This  is  one  improbability  in  her  story.  Again, 
she  represents  that  they  had  an  earnest  con 
versation,  one  stating  that  he  would  leave  for 
Washington  on  the  second  day  after,  and  the 
other  being  very  angry  that  it  had  not  fallen  to 
lim  to  go  to  Washington  ;  and  all  this  in  a  car 
which  she  represents  as  crowded — a  second 
mprobability,  if  the  conversation  was  serious. 
Sfext,  these  important  letters  are  dropped  care- 
essly  on  the  floor  and  left  there.  The  conduct 
of  these  men  would  seem  to  justify  the  judg 
ment  Gen.  Dix  was  half  inclined  to  pronounce 
on  the  transaction,  viz.:  that  it  was  a  hoax  got 
ip  for  the  Sunday  Mercury ;  particularly,  when 
we  consider  that,  though  one  of  the  letters  looks 
n  terms  to  immediate  action,  yet  nothing -fol- 
owed  having  the  remotest  reference  to  the  sub- 
ect  matter,  for  five  months  afterward. 

But  let   us  compare  dates.     Mrs.    Hudspeth 
says    the  circumstance  she  relates  occurred  on 


342 


ARGUMENT    OF    WALTER    S.    COX. 


Hie  day  when  General  Butler  left  New  York,  within  ten  days  or  a  fortnight  is  clearly  conteni- 
Major  Eckcrt  says  the  order  to  leave  New  York  plated.  Now,  this  is  no  such  conspiracy  as 
was  sent  to  General  Butler  on  the  llth  of  No-  the  present  charge  is  intended  to  embrace;  for 
vember;  that  he  applied  for  permission  to  re-  the  evidence  for  the  Government  shows  that 
main  until  the  next  Monday,  which  was  the  the  rebel  authorities,  at  a  much  later  period, 
14th.  The  inference  would  be  that  General  had  not  incited  and  encouraged  or  even  ap- 
Butler  left  on  the  14th,  and  that  Mrs.  Hudspeth's  proved  formally  any  plot  of  assassinat  ion,  but 
adventure  occurred  on  that  day,  and,  as  one :  instead,  that  the  proposition  had  been  ma <L> 
of  the  parties  she  speaks  of  was  to  leave  for  j  to  them  and  was  only  held  under  advisement. 
Washington  on  the  second  day  after,  Wednes-  !  No  such  plot  had  been  sanctioned  by  them  in 
day,  the  16th,  would  be  the  day  fixed  for  his  |  November,  and  it  is  such  a  plot  only  that  this 
departure.  But  a  little  uncertainty  is  thrown  charge  deals  with.  If  there  really  was  any 
upon  this  by  the  dispatch  of  General  Dix,  of  |  such  plot  as  the  letter  hints  at,  it  evidently 
the  17ih,  to  C.  A.  Dana,  Esq.,  in  which  he  says :  j  failed  and  was  abandoned,  for  it  was  to  be  con- 


The  party  who  dropped  the  letter  was  heard 
to  say  he  would  start  for  Washington  on  Friday 
night.''  This  would  be  the  18th.  If,  then, 
Mrs.  Hudspeth  is  correct  in  saying  that  one  of 
the  parties  said  he  would  leave  for  Washington 
the  day  after  to-morrow,  and  so  reported  to 
General  Dix,  and  he  properly  understood  her, 
it  must  have  been  on  Wednesday,  the  10th,  that 
the  meeting  in  the  car  occurred,  and  either  her 
recollection  is  at  fault,  as  to  date,  or  General 
Butler  left  on  the  10th  instead  of  the  14th.  At 
all  events,  we  are  safe  in  fixing  either  the  14th 
or  16th  as  the  date  of  the  occurrence  ;  no  evi 
dence  pointstoany  other  date.  Now,  if  we  turn 
to  the  testimony  of  Mr.  Bunker,  clerk  of  the 
National  Hotel,  we  will  find  that  Booth  arrived 
in  Washington  and  registered  at  that  hotel  on 
the  14th  of  November,  and  left  again  on  the 
10th. 

If  he  arrived  here  on  the  14th,  he  could  not 
possibly  have  been  riding  in  a  street  car  in 
New  York,  at  an  hour  when  the  brokers'  offices 
were  open,  to  one  of  which  Mrs.  Hudspeth  was 
then  going  with  some  gold,  and  the  fact  is  also 
inconsistent  with  the  declaration  made  by  the 
party  at  the  time,  that  he  was  to  leave  for 
Washington  two  days  after;  and  again,  if 
Booth  started  from  Washington  on  the  16th,  as 
the  National  Hotel  book  shows  he  did,  it  was 
equally  impossible  for  him  to  have  had  the 
pleasure  of  Mrs.  Hudspeth's  company,  in  the 


street  cars  of  New  York,  on    the 


dav 


business  hours;  for  even  Sir  Boyle  Roche  de 
clared  that  nothing  could  be  in  two  places  at 
the  same  time,  except  a  bird.  I  conclude,  there 
fore,  that  this  was  a  case  of  mistaken  identity, 
like  others  which  have  been  developed  in  the 
course  of  this  trial — that  Mrs.  Hudspeth  is 


wholly   mistaken 


identifying  Booth  as  the 


person    encountered  by  her  in  the  car ; 


and  if 

this  be  so,  then  her  evidence  does  not  point  to 
anybody  now  under  accusation,  and  is  wholly 
immaterial ;  and  if  it  further  be  judged  proba 
ble,  as  it  seems  to  me  to  be,  that  the  occurrence 
testified  to  was  designed  merely  to  mystify  the 
public,  its  value  as  evidence  in  this  case,  of 
course,  falls  below  zero. 

But  if  the  letter  found  by  Mrs.  Hudspeth 
had  a  serious  character,  and  the  individual 
who  dropped  it  was  really  Booth,  what  then  ? 
It  says,  among  other  things,  "  The  English  gen 
tleman,  Harcourt,  must  not  act  hastilv — re- 


summated  within  ten  days.  Nothing  was  done 
in  furtherance  of  the  design,  and  in  Decem 
ber  we  find  Booth,  according  to  Cleary's  infor 
mation  to  Montgomery,  again  in  Canada. 

Again,  it  does  not  appear  from  the  evidence, 
as  far  as  I  remember,  that  as  early  as  Novem 
ber,  Booth  was  even  acquainted  or  had  any  in 
tercourse  with  Payne,  Atzerodt,  Herold  or  Sur- 
ratt,  who  are  evidently  considered  by  the  Gov 
ernment  his  principal  accomplices  in  the  crime 
which  is  the  subject  of  this  charge.  On  the 
contrary,  it  is  shown,  as  to  Surra tt,  by  the  Gov 
ernment  witness,  Weichmann,  that  Booth  was 
only  introduced  to  him  on  the  loth  of  January 
therefore,  the  letter  found  by  Mrs. 
Hudspeth  tends  to  show  any  conspiracy  exist 
ing  as  far  back  as  November,  looking  to  the 
murder  of  the  President,  it  must  have  been  a 
conspiracy  wholly  different  from  that  with 
which  these  accused  are  charged — one  which 
wholly  failed  or  was  abandoned  immediately ; 
and,  therefore  this  evidence  is  not  inconsistent 
with  the  theory  I  have  announced,  that  there 
was  no  active,  living,  breathing  conspiracy  in 
February  or  March,  or  until  April,  and  no  de 
termination  by  any  one,  connected  with  any 
conspiracy,  to  assail  the  life  of  the  President 
or  of  other  heads  of  Government.  This,  then, 
I  take  to  be  incontrovertibly  established  by  the 
evidence  on  the  part  of  the  Government. 

But  in  the  interval  between  the  proposition 
said  to  have  been  made  in  or  before  January, 
1865,  to  the  rebel  agents  in  Canada,  to  assassi 
nate  the  President  and  others,  and  the  formal 
sanction  to  the  scheme  in  April,  what  was 
brewing  ? 

It  is  evident  that  in  this  interval  Booth  was 
revolving  and  maturing  another  project,  of  an 
entirely  different  character;  one  which,  as  be 
tween  two  hostile  nations,  was  perfectly  legiti 
mate,  and  involved  no  breach  of  the  law  of  na 
tions,  and  one  which  the  Confederate  authori 
ties  had -as  much  right  to  attempt  as  they  had 
to  do  anything  within  the  scope  of  belligerent 
rights,  and  one  to  which  the  special  sanction  of 
the  Richmond  authorities  was  wholly  unneces 
sary.  That  was  the  capture  of  the  President,  and, 
perhaps,  others,  and  1/icir  abduction  to  Richmond, 
with  a  view  of  forcing  an  (xchanye  of  prisoners. 
The  scheme,  though  not  innocent,  might  almost 
be  called  harmless,  from  its  perfect  absurdity 
and  impracticability.  But  Booth  had  become 


member,  he  has  ten  days."  Again,  "Do  any- j  possessed  with  the  idea,  and  was  a  monomaniac 
thing  but  fail,  and  meet  us  at  the  appointed  j  on  the  subject.  He  would  admit  no  difficulties, 
place  within  the  fortnight."  Whatever  the  plot  j  and,  like  a  madman,  sought  to  dragoon  his 
darkly  alluded  to,  its  complete  consummation  \  friends  into  the  scheme  with  threats  of  ruin  and 


THE    CONSPIRACY   TRIAL. 


343 


even  death.  Al  this  is  proved  by  the  testimony  them.  It  has  been  proved,  by  Mrs.  Van  Tyne, 
of  the  Government  witness,  by  Booth's  declara-  that  Arnold  gave  up  his  room  at  her  house  about 
tions,  made  in  the  prosecution  of  his  design,  in  the  18th  of  March,  and  by  other  witnesses,  as 
the  very  act  of  enlisting  adherents  for  his  we  shall  hereafter  see,  more  at  large,  that  he 
project,  or  rather,  1  should  say,  of  conscripting  left  Washington  finally  on  or  before  the  20th  of 
them,  for  cajolery  was  less  a  means  and  instru-  March.  So  that,  according  to  his  confession,  he 
ment,  than  threats,  of  effecting  his  object.  was  the  party,  or  one  of  the  parties,  who  backed 

Samuel  Knapp  Chester  testifies  that  about  the  out  from  this  insane  scheme  of  capture,  and  it 
24th  or  25th  of  November,  Booth  took  a  walk  ;must  have  fallen  through  and  been  abandoned 
with  him  in  New  York,  and  told  him  he  had  a  somewhere  about  the  middle  of  March.  This  is 
big  speculation  on  hand,  and  some  time  after  :  corroborated  by  other  evidence.  Weichmann 
repeated  the  statement;  that  still  later  Booth  shows  that  on  a  certain  day,  which  at  first,  he 
wrote  to  him  from  Washington  that  he  was  specu- !  could  not  fix  with  certainty,  vacillating  bc- 
lating  in  farms  in  Lower  Maryland,  in  which  he  :  tween  the  18th  and  25th,  but  which  he  finally 
was  sure  to  coin  money,  saying  that  the  witness  fixed  to  be  the  16th,  Booth,  Payne  and  John 
must,  join  him;  that  late  in  December  or  early  in  \  Surratt  came  into  Mrs.  Surratt's  in  a  state  of 
January,  he  walked  with  the  witness  in  an  un-j  great  anger  and  excitement,  and  Surratt  ex- 
frequented  portion  of  Fourth  street,  in  New  i  claimed,  "My  prospects  are  gone,  my  hopes  are 
York,  and  there  disclosed  the  nature  of  the  great  i  blighted ;  I  want  something  to  do.  Can  you  get 
speculation  he  was  engaged  in;  that  it  was  a  |  me  a  clerkship?"  Booth  and  Payne  manifested 
large  conspiracy  to  capture  the  heads  of  the  similar  excitement,  and  all  three  went  off  to- 
Govcrnment,  including  the  President,  and  to !  gether.  On  Surratt  s  return  he  informed  the 


take  them  to  Richmond.  He  assigned  to  Ches 
ter  the  part  which  he  wished  him  to  perform, 
threatened  to  implicate  him  in  it  anyhow,  and 
that  if  he  attempted  to  betray  the  plot  he  would 
be  hunted  down  through  life.  Subsequently, 
in  January,  Booth  wrote  several  times  to  Ches 
ter,  and  remitted  money  to  him,  urging  him  to 
come  to  Washington.  Still  later,  he  saw  Ches 
ter  in  New  York  in  February,  and  repeated  his 
solicitations,  and  spoke  of  his  efforts  to  engage 
one  John  Matthews  in  the  enterprise,  saying 
that  he  would  not  have  cared  if  he  had  sacrificed 
him,  in  consequence  of  his  refusal  to  join  him, 
as  he  was  a  coward,  and  not  fit  to  live — all 
which  indicates  the  insane  state  of  Booth's  mind 
on  this  subject.  Subsequently,  the  witness 
states,  Booth  told  him  he  had  given  up  the  par 
ticular  project  of  capturing  the  President  arid 
heads  of  Government,  and  that  it  had  fallen 
through  in  consequence  of  some  of  the  parties  back 
ing  out.  S^ill  later,  he  informed  him  that  in  conse 
quence  of  this,  he  was  selling  off  the  horses  he  had 
bought  for  the  purpose.  When  was  this  project 
given  up?  The  witness  thought  he  was  so  in 
formed  in  February,  but  we  shall  see  that  he 
was  mistaken  in  the  month,  both  by  the  date  of 
the  sale  of  the  horses  and  the  date  when  some 
of  the  parties  backed  out.  Who  were  the  parties 
that  backed  out?  Booth  did  not  give  their 
names,  but  this  omission  is  supplied  by  the 
statement  of  Arnold,  made  after  his  arrest, 
which  was  elicited  from  the  Government  wit 
ness,  Eaton  G.  Iforner.  From  this  it  appears, 
that  on  the  1st  of  April,  Arnold  went  to  Fortress 
Monroe  to  accept  a  situation.  Some  time  before 
that — the  witness  can  not  remember  whether  it 
was  a  week  or  two  or  three  weeks — he  attended 
a  meeting  in  Washington,  in  reference  to  the 
projected  capture  of  the  President,  in  order  to 
take  him  South,  and  thereby  compel  the  Gov 
ernment  to  make  an  exchange  of  prisoners.  Ar 
nold  declared  that  he  would  withdraw  from  the 
scheme  unless  it  was  effected  that  week,  where 
upon  Booth  threatened  to  shoot  him.  Arnold 
considered  the  scheme  impracticable,  and  did 
withdraw,  and  had  nothing  more  to  do  with  it, 
and  Booth  told  him  to  sell  the  arms  that  had 
been  furnished  him,  or  do  what  he  chose  with 


witness  that  Payne  had  gone  to  Baltimore  and 
Booth  to  New  York.  By  the  hotel  register  it 
appears  that  Booth  did  leave  on  the  21st.  All 
this  demonstrates  that  at  this  time  some  mys 
terious  scheme  of  theirs  had  failed.  The  sale  of 
the  horses  is  another  circumstance.  Surratt 
had  told  Weichmann  that  he  had  two  horses, 
which  he  kept  at  Howard:s  stable,  which  Booth 
afterward  told  him  were  his.  From  the  testi 
mony  of  Brooke  Stabler,  who  kept  Howard's 
stable,  it  appears  that  on  the  29th  of  March, 
Booth  paid  the  livery  of  these  horses  for  the 
month,  and  that  Atzerodt,  who  had  been  allowed 
before  the  use  of  the  horses,  took  them  away  on 
the  81st,  and  shortly  after  brought  them  back, 
at  different  times,  separately,  for  sale.  This, 
then,  was  about  the  period  when  Booth  must 
have  informed  Chester  he  was  selling  off  his 
horses,  and  the  backing  out  of  parties  to  the 
abduction  scheme,  and  its  consequent  falling 
through  and  abandonment  must  have  been 
shortly  before,  and  about  the  middle  of  March. 
We  shall  see  hereafter  that  Booth  still  clung  to 
this  project  all  through  the  month  of  March, 
and  made  one  or  two  spasmodic  efforts  to  rally 
his  forces,  but  without  success.  The  abandon 
ment  and  failure  were  complete  about  the  mid 
dle  of  that  month.  On  the  1st  of  April,  Booth 
went  to  New  York  and  was  there  a  week,  evi 
dently  having  then  finally  abandoned  the  scheme 
of  capture.  According  toConover,  this  schemeof 
capture  had  been  talked  of  inCanada  in  themonth 
of  February.  It  is  probable,  however,  that  it  was 
deemed  too  impracticable  to  attract  much  atten 
tion.  In  fact,  its  failure  might  easily  have  been 
predicted.  It  was  only  necessary  for  the  parties 
concerned  to  assemble  and  arrange  to  put  it 
in  motion,  for  the  whole  thing  to  fall  to  pieces, 
and  this  was  exactly  the  result  of  the  first  gen 
eral  meeting  of  the  conspirators.  But  Booth 
adhered  to  it  with  the  infatuation  of  a  half  in 
sane  man,  which  both  his  original  conception  of 
and  his  mode  of  pi'osecuting  this  scheme,  prove 
to  have  been. 

But  suddenly  the  scenes  are  all  shifted,  nnd 
the  curtain  rises  upon  a  new  drama,  a  bloody 
tragedy.  On  the  3d  of  April,  during  Booth's 
absence,  John  H.  Surratt  arrives  in  Washing- 


ARGUMENT    OF    WALTER    S.    COX. 


ton  with  these  ominous  dispatches  from  "Rich 
mond,  freighted  with  doom  to  the  unconscious 
victim  of  all  these  contrivances,  and  with  ruin 
and  infamy  to  all  the  authors  of  his  fate.  Booth 
was  then  in  New  York.  Bunker  shows  that  he 
left  the  National  on  the  1st,  and  Chester  saw 
him  in  New  York  on  the  7th.  Surratt  started 
for  Montreal,  and  probably  saw  Booth  on  the 
way,  or  else  he  received  news  from  Canada 
after  Surratt' s  arrival  there;  for  he  came  to 
Washington  on  the  8th,  and  the  hellish  plot  of 
murder  must  have  been  concocted,  arid  all  its 
details  arranged  by  him,  between  that  time  and 
the  moment  of  its  execution.  In  its  execution, 
not  a  single  trace  is  seen  of  any  of  the  Cana 
dian  rebels,  nor  is  there  the  slightest  ground 
furnished  by  the  evidence,  for  believing  that 
more  than  three  or  four  persons,  besides  Booth 
himself,  were  immediately  concerned  in  the 
commission  of  the  crime. 

Now,  what  part  had  Arnold  or  0' Laugh! in 
in  the  linal  tragedy  ?  As  to  Arnold,  the  matter 
seems  too  plain  for  doubt  or  argument.  Mrs. 
Van  Tyne  shows  that  he  gave  up  his  room  at  her 
house  about  the  18th  or  20th  of  March.  His 
brother,  William  S.  Arnold,  met  him  on  the 
way  to  his  house,  in  Hookstown,  on  the  21st, 
where  he  remained  till  Saturday,  the  25th.  On 
the  afternoon  of  that  day,  he  went  to  Baltimore 
with  the  same  brother,  supped  with  him,  and 
slept  in  the  same  room  with  him,  and  returned 
with  him  to  the  country  on  the  following  morn 
ing.  He  there  remained  until  Tuesday  or 
Wednesday,  the  28th  or  29th,  when  he  returned 
to  Baltimore,  and  on  the  way  stopped  at  the 
house  of  another  witness,  Miss  Minnie  Pole. 
On  the  30th  and  31st,  Thursday  and  Friday 
nights,  he  was  at  his  father's  house,  and  his 
brother,  Frank,  slept  with  him,  William  also 
sleeping  in  the  room,  on  Friday  night.  On 
Saturday  morning  he  went  to  the  country  with 
his  brother,  returned  in  the  middle  of  the  day, 
and  on  the  same  afternoon  went  to  Fortress 
Monroe.  He  had  previously  made  application, 
by  letter,  for  a  situation  there.  The  testimony 
of  his  brother,  as  to  his  stay  in,  the  country,  is 
confirmed  by  that  of  Jacob  Smith,  a  neighbor. 
Then  it  appears  from  the  testimony  of  Mr. 
Wharton,  who  employed  him  as  clerk,  and  of 
Charles  B.  Hall,  a  fellow- clerk,  that  he  was 
constantly  in  the  store  at  Fortress  Monroe,  in 
daily  attendance,  arid  faithfully  discharging 
his  duty,  from  the  time  of  his  arrival,  the  2d 
of  April,  to  the  17th,  the  date  of  his  arrest.  It 
was,  therefore,  physically  impossible  for  him 
to  participate  in  the  murder  or  assaults  in 
Washington.  Nor  is  there  the  slightest  evi 
dence,  or  even  pretense,  that  he  had  any  part 
to  perform,  in  the  execution  of  the  deadly  plot, 
at  Fortress  Monroe,  or  was  otherwise  engaged 
there,  than  in  the  peaceful  duties  of  his  clerk 
ship. 

The  case  of  O'Laughlin  is  equally  free  from 
doubt.  The  specific  charge  against  him  is,  that, 
in  pursuance  of  the  general  design  of  the  con 
spiracy,  he  did,  on  the  nights  of  the  13th  and 
14th  of  April,  lie  in  wait  for  General  Grant, 
with  intent  then  and  there  to  murder  him;  and 
the  whole  evidence  on  the  subject  shows  a  mis 
take  of  identity  that  would  be  ridiculous  but 


j  for  the  serious  consequences  it  involves  to  the 
accused.  On  the  evening  of  the  13th,  a  large 
crowd  assembled  in  front  of  Secretary  Stan- 
ton's,  in  compliment  to  him  and  General  Grant. 
About  half-past  ten  o'clock,  and  while  the  crowd 
were  still  there,  according  to  Mr.  David  Stan- 
ton  and  Major  Knox,  a  stranger  inquired  of  the 
latter  where  the  Secretary  was,  and  afterward 
lounged  into  the  hall  and  peered  into  the  par 
lor,  and,  on  being  questioned  by  Mr.  David 
Stanton,  repeated  his  inquiry,  and  being  told 
that  the  Secretary  was  on  the  steps,  and  being 
requested  to  leave,  quietly  walked  out.  Neither 
of  these  witnesses  has  any  recollection  that 
General  Grant  was  inquired  for  at  all.  Why 
the  Government,  with  this  information,  did  not 
charge  the  lying  in  wait  to  have  been  for  Sec 
retary  Stanton,  is  a  matter  of  astonishment. 
The  whole  evidence  applicable  to  General  Grant 
is  that  of  Mr.  Stanton  s  messenger,  John  G. 
Hatter,  who  simply  relates  that  about,  nine 
o'clock,  or  a  little  after,  a  man  approached  him, 
on  the  step,  and  inquired  for  Grant,  and,  on 
being  told  that  he  could  not  see  him,  walked  oif. 
This  was,  probably,  some  half-intoxicated  and, 
perhaps,  half-demented  stranger,  who  was  ac 
tuated  by  the  same  curiosity  that  brought  a 
large  part  of  the  crowd  assembled  there  on  that 
occasion,  and,  but  for  the  tragedy  of  the  next 
night,  the  circumstance  would  never  have  been 
thought  of  again.  But  when  the  President  was 
shot,  Mr.  Seward  was  assaulted,  and  the  Vice- 
President  apparently  waylaid,  it  naturally  oc 
curred  to  every  one  that  the  members  of  the 
Cabinet  had,  probably,  all  been  exposed  io  the 
common  danger,  and  the  affair  of  the  mysteri 
ous  stranger's  visit  was  recalled,  and  when 
Booth  was  discovered  to  be  the  assassin  of  the 
President,  and  his  associates  were  arrested, 
these  witnesses  went  to  examine  them  with  a 
natural  suspicion  of  finding  among  them  a 
would-be  assassin  of  Secretary  Stanton  or  Gen 
eral  Grant.  Mr.  David  Stanton  recognized 
O'Laughlin  as  the  man  on  the  monitor,  although 
he  says  he  had  a  very  indistinct  view  of  him, 
because  it  was  so  dark.  Major  Knox  and  Hat 
ter  visited  him  in  prison,  and  both  under  the 
same  conviction  that  the  person  seen  at  Mr. 
Stanton's  must  have  had  something  to  do  with 
the  conspiracy,  undertook  to  identify  the  ac 
cused  as  the  man.  Two  of  these  witnesses 
describe  his  coat  as  a  black  dress  coat,  and  one 
as  a  frock;  all  say  he  had  black  pants.  None 
of  them  had  ever  seen  the  individual  before. 

This  is  only  one  of  several  instances  of  mis 
taken  identity  exhibited  in  the  trial.  Dr. Merritt 
located  Herold  in  Canada,  where  he  never  was 
in  his  life,  from  the  15th  to  the  20th  of  Febru 
ary,  when  he  was  clearly  proved  to  have  been 
here  on  both  those  days,  collecting  rent,  and 
signing  his  own  name  to  the  receipts.  The 
same  thing  occurred  in  regard  to  Dr.  Mudd, 
whom  Evans  swears  to  having  seen  in  Wash- 
ngton  on  the  1st,  2d  or  3d  of  March,  whereas, 
he  is  proved  to  have  been  many  miles  distant 
on  each  of  those  days. 

But  this  whole  story  about  the  lying  in  wait 
for  General  Grant  is  blown  to  the  wind  by  the 
testimony  of  the  defense.  Let  us  trace  the  ac 
cused  by  the  light  of  this  testimony.  In  the 


TIIE    CONSPIRACY   TRIAL. 


345 


first  place,  lie  was  invited,  with  two  others,  |  terward,  and  that  they  were  not  for  a  moment 
Murphy  and  Early,  by  Ensign  Henderson,  lo  j  nearer  to  Mr.  Stanton's  than  a  point  which 
come  to  Washington,  on  Thursday,  the  13th  of  {must  be  a  full  mile  distant,  and  their  testimony 
April,  the  occasion  of  the  general  illumina-jis  added  to  by  three  other  witnesses,  making 
tion.  This  is  sworn  to  by  all  three  of  these  j  seven,  who  locate  the  accused  still  farther  oft' 
parties.  They  arrived  in  Washington  between  |  from  the  scene  of  his  supposed  murderous  de- 
live  and  six  o'clock,  and  first  stopped  at  Hull- 'signs,  between  the  hours  of  ten  and  eleven 
man's  Hotel.  While  one  of  the  company  stopped  j  o'clock,  when  the  other  Government  witnesses 
to  be  shaved,  the  accused  went  with  Early  to  j  profess  to  have  seen  him.  Six  of  the  party 


the   National    Hotel,    and    there    inquired    for 
some  person,  and,  perhaps,  went   in  search  of 


were  with   the  accused   until   between    twelve 
and  one  o'clock  that  night,  and  the  casual  ac- 


him,  but  returned  to  the  door  in  from  three  to  j  cessions  to  the  company  having  left,  the  ac- 
five  minutes.  This  is  proven  by  Early.  Thejcused,  Henderson,  Murphy  and  Early,  accord- 
accused  stated  to  Henderson  afterward  that  he  '•  ing  to  their  concurrent  testimony,  retired,  at 
h-ad  been  to  see  Booth,  but  not  whether  he  had  j  the  Metropolitan  Hotel,  toward  two  o  clock  in 
seen  him;  and  there  is  no  proof  that  he  had,  |  the  morning.  On  Friday  morning  the  accused 
but  the  contrary  is  sufficiently  shown  by  the  was  roused  by  Early  and  Henderson.  The 
short  time  spent  in  the  hotel.  The  accused  and  I  same  party  of  four  breakfasted  at  Welcher's, 
Early  then  returned  to  Rullman's  before  Hen- j  and  strolled  on  the  avenue  to  the  National 
derson  had  finished  shaving,  and  there  rejoined  '  Hotel,  and  entered  there  about  nine  o  clock, 
him  and  Murphy.  This  is  sworn  to  by  all  There  the  accused  went  up  stairs  in  search  of 
three — Murphy,  Early  and  Henderson — and  Booth,  and,  as  he  did  not  return  for  some  time, 
Murphy  says  that  Early  and  the  accused  were  a  half  or  three-quarters  of  an  hour,  the  party 
not  gone  more  than  five  or  six  minutes.  They  left,  thinking  he  might  have  gone  to  Rullman  s. 
then  lounged  up  Pennsylvania  avenue,  and  Not  finding  him  there,  they  returned  to  the 
went  into  Welcher's  saloon.  These  details  are  National,  and  sent  up  their  cards  to  Booth's 


given  by  both  Early  and  Murphy,  and  though 
Henderson  is   more  general,  he  confirms  them, 


room,  but   no  one  was  there.     The  cards  being 
left  at  the  ofiice,  they  returned   to  Rullman  s, 


as  to  the  accused  having  been  in  company,  all  j  where  they  were  joined  by  the  accused  in  about 
the  time,  with  these  parties.  Leaving  Welcher's   an  hour.     This  would  be  in  the  neighborhood 


about  eight -o'clock,  they  returned  to  Rullman1  s, 
and  were  shortly  after  joined  by  Daniel  Lough- 
ran,  wrho  is  now  added  as  a  fourth  witness. 
The  whole  party  of  five  then  strolled  up  Penn 
sylvania  avenue  to  look  at  the  illumination. 
They  all  agree  as  to  having  passed  Seventh 
street.  Those  not  residing  here,  and  not  fa 
miliar  with  the  streets,  speak  only  of  going  a 
little  beyond  Seventh,  but  Loughran,  who  re 
sides  here,  fixes  the  end  of  the  walk  at  Ninth 
street,  and  all  agree  that  they  did  not  go  be 
yond  it.  They  then  turned  back.  Henderson, 
Early  and  Loughran  all  fix  the  hour  of  this 
movement  to  be  nine  o'clock,  about.  Loughran 
looked  at  his  watch,  because  he  wished  to  go  as 
far  as  the  Treasury,  and  some  of  the  party  re 
marked  that  it  was  too  late.  They  then  went 
to  the  Canterbury  Music  Hall,  arid  remained 
about  an  hour  or  three-quarters,  which  brought 
them  to  about  ten  o'clock.  All  four  swear  that 
O'Laughlin  went  there  with  them,  and  re 
mained  with  them,  and  returned  with  them  to 
Rullman' s,  after  stopping  at  the  Metropolitan, 
about  ten  o'clock — a  little  sooner  or  later. 
There  they  remained  from  half  an  hour  to  an 
hour.  At  half-past  ten,  Grillet  passed  with  a 
lady,  and  shortly  after  eleven  o  clock  returned, 
found  them  in  the  same  place,  and  joined  them. 
He,  Early,  Murphy  and  Loughran  mention  the 
circumstance,  and  this  brings  a  fifth  witness 
on  the  stage.  In  addition  to  these,  Purdy,  the 
manager,  and  Giles,  the  bar-tender  of  Rull 
man1  s  Hotel,  both  swear  that  he  was  at  the 
hotel,  one  fixing  the  hour  at  about  ten,  and  the 
other  at  about  half-past  ten,  and  remained 
with  the  other  parties  until  after  eleven.  Here, 
then,  are  seven  witnesses,  of  whom  four  swear 
they  were  in  company  with  the  accused  at  the 
hour  fixed  by  Hatter  of  his  waylaying  General 
Grant  at  Mr.  Stanton's,  and  all  the  evening  af- 


of  eleven  o'clock,  and  the  accused  then  stated 
to  Henderson  that  he  had  not  found  Booth,  that 
he  was  out.  All  the  rest  of  the  morning  the 
accused  was  in  company  with  all  three  of  his 
friends,  and,  in  the  afternoon,  he  only  parted 
with  the  others,  to  go  with  Early,  between  four 
and  five  o'clock,  to  visit  a  lady.  Early  speaks 
fully  of  this,  and  Henderson  says  he  was  with 
the  accused  all  day,  except  a  part  of  the  after 
noon,  when  he  went  off  with  Early.  Early  and 
the  accused  paid  the  visit,  and  returned  about 
six  o'clock,  and  rejoined  the  others  at  the-  hotel 
(Rullman 's).  So  Early  states,  and  Henderson 
confirms  it,  and  Murphy  states  that  he  was 
with  them  until  eight  o'clock,  when  they  went 
to  supper,  and  he  parted  with  them  until  next 
day.  Meanwhile,  Early,  Henderson  and  the 
accused  went  to  Welcher's  to  supper,  and  re 
turned  to  Rullman's,  where  they  remained 
until  after  the  news  of  the  President's  assas 
sination.  Early  docs  not  remember  how  late 
this  was,  and  does  not  remember  the  hour  of 
O'Laughlin's  leaving  there  with  Fuller;  but 
Grillet,  Purdy,  Henderson,  Fuller  and  Giles  all 
swear  that  0  Laughlin  was  at  Rullman's,  in 
their  company,  when  the  news  of  the  Presi 
dent's  assassination  reached  there.  It  was  com 
municated  to  O'Laughlin  and  the  others  by 
Purdy,  who  had  heard  it  at  the  door.  Shortly 
after  O'Laughlin  left  Rullman's,  in  company 
with  Fuller,  who  had  been  in  his  brother's  em 
ploy,  and,  on  his  invitation,  he  spent  the  night 
with  him.  Early  on  Saturday  morning  the 
accused  joined  the  same  party,  and  was  with 
them  until  their  departure  for  Baltimore,  in  the 
afternoon  train,  as  testified  by  Early  a;:d 
Murphy. 

Now,  to  return  to  Thursday  evening.  One 
Government  witness  fixed  nine,  and  the  oilier 
two,  half-past  ten  o'clock,  as  the  hour  at  which 


346 


ARGUMENT    OF    WALTER   S.    COX. 


the  accused  was  seen  lurking  about  Mr.  Stan-  | '  efer  to  the  evidence  already  analyzed,  which 
ton's.  As  to  the  first  hour,  we  have  four,  and  \  shows  that  from  six  o'clock  until  after  the  as- 
as  to  the  second  hour,  the  same,  with  three  :  sassination,  the  nee  used  was  quietly  engaged 
others,  making  seven  respectable  witnesses,  j  with  the  companions  before  named,  remote  from 
of  different  pursuits,  casually  meeting,  and  in  jthe  scenes  of  blood  and  danger,  until  after  the 
no  wise  implicated  or  interested  themselves;  j  whole  tragedy  was  over.  General  Grant,  mean- 
two  of  them  called  by  the  Government,  and  so  while,  was  far  away,  although  he  had  been  ex- 
accredited  as  worthy  of  belief,  and  one  of  these  j  pected  and  announced  to  appear  at  Ford's 

theater  on  Friday  night,  and  the  change  of 
purpose  was  probably  only  known  to  the  con 
spirators  by  his  actual  absence.  The  accused 
was  not  at  the  theater,  nor  at  Secretary  Sew- 
ard's,  nor  at  the  Kirkwood,  nor  anywhere  else 
where  it  can  be  conceived  that  any  part  of  the 
massacre  was  to  be  performed.  No  conceivable 
part  in  the  enterprise  can  be  assigned  to  him. 
Indeed,  it  is  evident  that  he  designed,  as  the 
others  did,  to  return  to  Baltimore  on  Friday 
morning,  and  was  only  detained  by  the  per 
suasions  of  Henderson.  Did  his  conduct  indi 
cate  any  complicity  in,  or  knowledge  of,  the 
impending  crime?  Was  he  silent,  or  excited, 
or  nervous,  betraying  the  fatal  truth  in  his 
cups,  bursting  with  the  big  and  fatal  secret 
which  could  not  be  contained?  On  the  con 
trary,  he  is  represented  as  in  the  finest  spirits, 
cheerful,  composed,  and  light-hearted,  mingling 
in  the  merry  revel  with  his  boon  companions, 
evidently  all  unconscious  of  the  impending 
evil. 

But  lie  went  to  see  Booth  on  two  occasions — 
Thursday  afternoon  and  Friday  morning.  It 
does  not  appear  that  he  saw  him  on  either;  the 

plated.  On  Friday  night  the  murder  occurred;  contrary  is  rather  shown.  But  suppose  he  had 
on  the  same  night  Mr.  Seward  was  assaulted;  I  seen  him.  The  afternoon  and  the  morning  visit 
on  Friday  afternoon  Booth  called  to  see  the  |  were  both  before  Booth  even  knew  that  the 
Yicc-President,  evidently  not  to  assassinate  President  was  to  be  at  Ford's  theater  on  Fri- 
him  th,:n,  but  to  learn  of  his  whereabouts;  and  day  night,  for  h  appears  that  he  only  received 
if  any  such  part  as  the  assassination  of  Gen.  j  the  informat ion  at  the  theater  at  noon  on  that 
Grant  was  assigned  to  0  Laughlin,  Friday  night  'day.  Ik-fore  that  hour,  O'Laughlinhad  rejoined 
w. is  the  time  assigned  for  its  execution.  It  is  j  his  companions,  and  was  not  out  of  the  corn- 
evident,  that  if  he  had  made  the  attempt  on  pany  of  some  of  them  the  whole  day  aftcr- 
Tuiirsday,  successfully  or  not,  it  would  have  ;  ward.  Now.  alter  Booth  learned  of  the  Pres- 
the  whole  scheme,  for  it  would 


an  officer  in  the  United  States  navy,  and  all  of 
them  wholly  unimpeached,  all  intimately  ac 
quainted  with  the  accused,  who  establish  an 
alibi  beyond  the  possibility  of  question.  It  is 
physically  impossible  that  they  can  be  mista 
ken;  they  can  not  be  disbelieved  without  im 
puting  deliberate  perjury  to  them  all.  It  is 
morally  impossible  that  they  can  be  perjured. 
On  the  other  hand,  nothing  is  further  from  im 
possible,  nothing  is  easier,  than  for  all  the 
Government  witnesses  to  have  been  mistaken. 
A  minute's  view  at  night,  of  a  stranger,  whom 
th.\v  had  never  beheld  before,  furnished  them 
ail  the  knowledge  upon  the  strength  of  which, 
w  eks  after,  they  assumed  to  identify  him  in 
the  obscurity  of  an  iron-clad,  and  the  shades 
of  a  dungeon.  It  were  folly  to  dwell  longer  on 
the  comparison  between  the  two  kinds  of  evi 
dence.  But  look  for  a  moment  at  the  gross' im 
probability  of  the  story.  It  is  evident  that  the 
different  parts  of  this  plot  were  to  be  executed 
simultaneously — it  was  essential  to  success. 
It  is  also  evident  that  Friday  night  was  the 
iirst  time  fixed  for  its  execution.  Nothing  tends 
to  show  any  earlier  attempt,  made  or  contem 


thwaived 

put  every  one  else  on  his  guard. 


have  lident's  arrringi-rnents  for   the  evening,  and  laid 
And  the  pros-  his  plans    for  the   murder,   if  the  accused   had 

eeution  felt  the  stress  of  this  consideration,  for  any  connection  with  him  whatever  in  this 
they  have  added  Friday,  the  14th,  in  the  speci-  j  scheme,  why  did  not  Booth  go  after  him, 
fication,  because  this  was  absolutely  necessary  |  seek  him  out,  and  assign  him  his  part? 
in  order  to  connect  the  accused  with  the  actual  Either  lie  did  not  know  of  his  presence 
execution  of  tfye  conspiracy,  although  they  had  here,  or  he  did  not  regard  him  as  an  accom- 


nOi  a  scintilla  of  proof  to  justify  it.  The  story 
becomes  still  more  improbable  when  we  are  re 
quired  to  believe  that  this  small  and  feeble 
man  ventured,  single-handed,  into  a  brilliantly 
lit  house  to  assault  Mr.  Stanton  or  General 
Grant,  or  both,  where  he  could  hardly  fail  to 
bo  seized,  with  a  crowd  at  the  front  to  inter 
cept  his  retreat,  and  wholly  ignorant  of  the 
exit  by  the  rear.  It  may  be  said  that  he  was 
then  simply  reconnoiterine  for  a  more  favor- 


here,  or 
pi  ice. 

But  could 


the    accused    really  desire   better 


proof  of  his  innocence  than  the  fact  of  his 
visit  to  Booth  affords?  Can  anybody  conceive 
that  with  the  knowledge  of  the  intended  mur 
ders,  still  more,  expecting  to  participate  in 
them,  he  would  have  gone  openly,  in  a  public 
hotel,  to  visit  the  intended  leader  in  the  crime, 
in  company  with  several  persons,  one  of  them 
LTI  officer  in  the  navv,  on  the  very  day  of  th 


le  opportunity.     But   the   charge  is,  that   lie  !  intended  attempt?     Could  such    infa!  nation  be, 


imputed    to    any   man    in    his  sense- 


Would 


not  a  guilty  man,  or  one  with  guilty  knowledge 


lav  in  wait  on   that  night  with  intent,   then  ami 

tiv'i'e  \.u  kill    and    murder   General   Grant;   and 

if  that  is  disproved,  the  whole  is  disproved,  for 

it.  has   not  been   even  attempted  to  show  way- [knowing  that  suspicion  would   altach   to  every 

laying    on    Friday    night,    the    14th    of  April,    one  seen    in    intercourse    with  Booth    about  the 

For  this  reason  it  is  almost  battling  wind-mills 

to  attempt  to  controvert  that  part  of  the  charge 

relating  to  Friday  night.     There  is   nothing  to 

answer  or  refute.     It  is  sufficient,  however,  to 


time  of 


crime,   and   that  th<>   sleuth-hounds 


of  justice  would  soon  be  upon  his  trail? 

And  when  he    received    the  news    of  the  as 
sassination,    what    was    his    conduct?     Did  ho 


THE    CONSPIRACY   TRIAL. 


347 


betray  guilt  by  agitation,  and  excitement  and  not  recollect  his  coming  during  the  last  few 
flight?  Nothing  of  the  sort.  He  was  natu-  days  of  Booth's  stay.  Those  last  few  days  were 
rally  startled,  and  the  thought  naturally  oc-  the  week  before  the  assassination.  The  previ- 
curred,  that  as  he  had  been  intimate  with '  ous  week  Booth  was  in  New  York,  and  could  not 
Booth,  and  had  only  that  morning  gone  openly  have  been  seen  here  by  the  accused.  Bunker's 
to  call  on  him,  he  might  be  suspected.  But  still  i  testimony  is  so  vague  as  to  dates,  that  it  can 
he  betrayed  none  of  the  terrors  of  guilt.  He  not  be  weighed  for  a  moment  against  the  posi- 
went  quietly  to  sleep  at  the  house  or  lodgings  tive  testimony  of  Mr.  Maulsby.  The  same  may 
of  a  friend.  The  party  had  no  particular  j  be  said  of  Streett,  who  thinks  he  remembers  see- 
lodgiugs,  and  seern  all  to  have  scattered  that '  ing  the  accused  in  conversation  with  Booth  in 
night.  O'Laughlin  stayed  with  Fuller.  He  i  the  streets,  well  on  to  the  1st  of  April,  which 
joined  his  friends  the  next  morning,  and  they  J  might  have  been  before  his  departure  on  the 
went  quietly  homo  together.  On  reaching  home  j  18th  of  March.  It  is  true  that  Booth  tele- 
he  was  informed  that  the  officers  of  justice  were  j  graphed  to  him  on  the  27th  to  come  to  Washing- 
in  search  of  him.  His  suspicion,  expressed  in  I  ton  on  the  29th,  but  it  does  not  appear  that  he 
Washington,  was  realized,  and  he  found  him- 1  ever  received  the  telegram,  and  it  is  certain  he 
self  involved  in  trouble.  No  man — the  most  i  did  not  respond  to  or  comply  with  its  request. 


innocent — could  avoid  emotion  in  some  degree, 
under  such  circumstances.  But  his  demeanor 
was  wholly  irreconcilable  with  guilt.  He  ab 
sented  himself  from  home  that  night  for  a  rea 
son  that  was  creditable  to  him,  viz.:  that  his 
arrest  there  might  be  the  death  of  his  mother; 
and  no  one  can  believe  that  a  youth  governed 
by  these  filial  sentiments  could  be  so  steeped 
in  depravity  as  to  have  had  any  share  in  the 
conception  or  execution  of  the  diabolical  crime 
of  Booth.  The  officers  were  at  his  lodgings  in 
search  of  him  on  Saturday  and  on  Sunday. 
On  Sunday  he  informed  Murphy  of  the  fact, 
and  stated  that  he  meant  to  surrender  himself 
on  Monday,  and  on  that  day  he  did  so,  through 
his  brother-in-law,  Mr.  Maulsby.  Throughout, 
his  declarations  were  that  lie  was  innocent  of 
any  connection  with  the  crime,  and  could  ac 
count  for  every  moment  of  his  time  spent  in 
Washington;  and  that  he  has  done. 

It  is,  therefore,  apparent  that  neither  Arnold 
nor  O'Laughlin  had  anything  to  do  with  the 
execution  of  the  alleged  conspiracy,  and  that 
they  even  could  not  have  had  any  knowledge  of 
the  intended  murders. 

Furthermore,  it  appears  that  for  nearly  a 
month  before  the  assassination  they  had  no  per 
sonal  intercourse  with  Booth.  Arnold  was  in 
Baltimore  and  the  neighborhood  from  the  21st 
to  the  31st  of  March,  and  fi-omthat  time  at  Fort 
ress  Monroe.  He  was  not  in  Washington  at 
all.  And  though  his  letter,  offered  in  evidence, 
would  seem  to  show  that  Booth  had  been  to  see 
him  at  his  home,  it  also  shows  that  no  interview 
was  had,  nor  is  any  correspondence  shown,  ex 
cept  the  letter  in  question.  This  letter  evidently 
shows  a  rupture  of  former  relations  with  Booth. 


March  it  also  appears  that  a  let- 
from    Booth  to    O'Laughlin,  but 


Some  time  in 
ter   was   sent 

whether  in  the  beginning  or  end,  or  what  were 
its  contents,  is  a  matter  of  perfect  uncertainty, 
as  it  is,  also,  whether  he  ever  noticed  it.  On 
O'Laughlin's  own  part,  no  single  act  of  inter 
course  is  shown,  between  March  18th  and  April 
13th,  when  he  came  to  Washington,  evidently  in 
the  moV  complete  and  happy  ignorance  of  the 
mischief  that  was  brewing. 

If,  then,  Arnold  and  O'Laughlin  ever  were  con 
nected  with  Booth  in  a  conspiracy  for  anv  ob 
ject,  before  the  middle  of  March,  it  is  clear  that, 
about  that  time,  they  wholly  withdrew  from  and 
abandoned  it,  while  it  was  wholly  unexecuted, 
if  not  merely  in  embryo.  And  this  being  the 
case,  according  to  the  principles  heretofore  laid 
down,  they  were  not  parties,  in  law  or  in  fact, 
to  any  act  subsequently  done. 

But  let  us  see  what  evidence  there  is  to  con 
nect  them  with  any  conspiracy. 

First,  as  to  O'Laughlin.  I  maintain  that  there 
is  no  competent  legal  evidence  to  show  him  im 
plicated  in  any  conspiracy  whatever.  Throw 
out  of  the  case  the  confession  of  Arnold,  and 
any  statements  made  by  him  casually  to  third 
persons — which,  I  shall  show,  are  not  evidence 
against  O'Laughlin — what  remains?  No  one 
can  pretend  that  there  is  any  direct  evidence. 
If  any,  it  is  circumstantial.  A  conspiracy  may 
be  proved  by  circumstances,  but  by  what  kind 
of  circumstances?  Russell  on  Crimes,  2  vol.,  p. 
698,  says: 

"The  evidence  in  support  of  an  indictment 
for  a  conspiracy  is  generally  circumstantial; 
and  it  is  not  necessary  to  prove  any  direct  con 
cert,  or  even  any  meeting  of  the  conspirators, 


'When  I  left  you,  you  stated  we  would  not  meet]  as  the  actual  fact  of  conspiracy  may  be  collected 
in  a  month  or  so."     "I  told  my  parents  /  hadlfrom  the  collateral  circumstances  of  the  case." 
ceased  with  you.      Can  I,  then,  under  existing  cir 
cumstances,  come  as  you  request?'     Such  are  the 
terms   of  the  letter.     And,  in  effect,  we  know 
that  he  did  not  come  as  requested,  but,  on  the 
contrary,    accepted    a    situation,    and    went  to 


If,  therefore,  two  persons  pursue,  by  their  oivn 
acts,  the  same  objects,  often  by  the  same  means,  one 
performing  one  part  of  the  act,  and  the  other  an 
other  part  of  the  same  act,  so  as  to  complete  it, 
with  a  view  to  the  attainment  of  the  object  they 


<*        91  LU<1  L  1U11  ,        illlU.        VVUIll'      IU        VV1L11    <*      V  HJ  W     IA_F     1<U<0    il  I  til  111  111  I  II  l>    U  L     lilt    UUfvtJl      lllCY 

Fortress  Monroe  on  the  1st  of  April,  and  this' were  pursuing,  the  jury  arc  at  liberty  to  draw  the 
was  the  last  even  of  his  correspondence  with)  conclusion  that  they  had  been  engaged  in  a  conspiracy 
Booth,  and  this  completed  and  sealed  the  rup-jto  effect  that  object.  In  a  case  where  a  husband 
ture.  As  to  O'Laughlin,  no  intercourse  of  any)  and  wife  and  their  servants  were  indicted  for  a 


sort  is  shown  with  Booth  after  the  18th  of 
March.  On  that  day  he  went  home,  according 
to  Mr.  Maulsby,  and  remained  there  with  him 


conspiracy  to  ruin  the  trade  of  the  prosecutor, 


who  was   the   king's  card-maker,  the  evidence 
was    that    they  had,  at    several 


against   them 


ever  since.    Mr.  Bunker,  who  speaks  of  O'Laugh- 1  times,  given  money  to  the  prosecutor's  appren- 
lin's  frequent  visits  to  Booth,  admits  that  he  did  j  tices    to  put  gi'ease  into  the  paste,  which  had 


348 


ARGUMENT    OF    WALTER    S.    COX. 


spoiled  the  cards ;  but  there  was  no  account 
given  that  ever  more  than  one  at  a  time  was 
present,  though  it  icas  proved  that  the//  had  all 
given  money  in  their  turns;  it  was  objected  that 
this  could  not  be  conspiracy,  on  the  ground 
that  several  persons  might  do  the  same  thing 
without  having  any  previous  communication 
with  eacli  other.  But.  it  was  ruled  that  the  de- 


seen  that  Booth  was  absent  from  Washington  at 
that  time.  Indeed,  he  was  absent  for  twelve 
days  before  the  room  was  taken  at  Mrs.  Van 
Tyne's,  and  so  continued,  if  1  understand 
Bunker  s  evidence  aright,  for  twelve  days  after 
ward.  The  book  shows  that  he  left  on  the  ::8th 
of  January,  and  arrived  again  on  the  L'lM  of 
February,  though  there  is  some  confus.on  on 


fendants  being  all  of  a  family,  and  concerned    this  point.     It  can  hardly  be  understood. 


in  the  making  of  cards,  it  (/.  e.  these  acts  done 
in  pursuance  of  a  common  object)  would  be  evi 
dence  of  a  conspiracy.''  Now,  it  is  evident  in 
this  case,  that  the  mere  fact  of  belonging  to  this 
family,  and  even  being  concerned  in  the  same 
trade,  would  not  have  begun  to  be  evidence  to 
implicate  any  one.  It  was  the  doing  of  acts  in 
pursuance  of  the  common  end,  which  was  the  cir 
cumstantial  proof  admitted,  aided  by  showing 
a  common  motive. 

Now,  in  the  case  under  trial,  what  single  act 
or  declaration  of  O'Laughlin  can  be  shown 
looking  to  any  common  end  or  object  between 
him  and  Booth?  Is  his  personal  intimacy  ad 
duced  ?  But  not  only  had  that  no  necessary 
connection  with  any  criminal  design,  but  it  is 
proved  that  it  could  not  have  originated  in  any 
thing  of  the  sort.  They  were  opposite  neigh 
bors  in  Baltimore,  had  been  schoolmates  in 
boyhood,  in  the  same  neighborhood,  and  be 
tween  themselves  and  their  families  an  unin 
terrupted  intimacy  had  subsisted  for  many 
years.  If  intimacy  were  any  evidence  of 

complicity  with  Booth,  it  would  hardly  be  pos- 1  to  prove  it  against  O'Laughlin.  Consider, 
sible  to  assign  any  limits  to  the  scope  of  this  j  moreover,  what  else  has  not  been  proved  against 
conspiracy.  His  profession,  no  less  than  his  him.  While  the  prosecution  have  sought  to 
personal  qualities,  necessarily  made  him  many  show,  and  will  doubtless  maintain,  that  Mrs. 
acquaintances.  Others  were  more  intimate  Surratt's  house  was  the  headquarters  of  the 
1 — McCulloch,  Went- i  alleged  conspiracy,  tl 


how  his  occupancy  of  this  room  could  ha 
reference  to  schemes  Booth  was 
here.  It  certainly  had  no  necessary  connection 
with  them,  andean  not  be  called  as  an  act  done 
in  furtherance  of  them,  without  much  more 
proof.  Where  O'Laughlin  was  in  the  begin 
ning  of  March,  is  not  very  clear,  but.  it  is  cer 
tain  that  he  was  at  home  on  the  7th,  and  so 
continued  until  the  loth,  when  he  spent  five 
days  in  Washington.  Now,  this  is  everything 
in  the  case,  in  the  shape  of  acts  or  declarations 
of  O'Laughlin.  No  man  can  deny  that  his  in 
timacy  with  Booth,  and  his  stay  in  Washington, 
were  perfectly  consistent  with  utter  ignorance 
of  anything  illicit  in  progress,  and  are  fully 
accounted  for  on  other  grounds.  He  might,  for 
aught  that  appears,  have  been  guilelessly  keep 
ing  up  a  social  intimacy  with  the  friends  of  his 
boyhood,  and  Booth  may  not  have  whispered 
his  designs  to  him,  as  he  did  not  to  others 
equally  or  more  intimate  with  him.  This  inti 
macy,  therefore,  can  not.  be  called  an  act  done 
in  pursuance  of  the  conspiracy,  and  tending 


with  him  than  the  accused- 
worth,  and  others,  shared  his  room  at  the  Na 


tional  Hotel, 
no  suspicion. 


Yet  they  seem  to  have    attracted 


Can  the  circumstance  of  O'Laughlin's  pres 
ence  in  Washington  and  his  occupying  a  room  at 
Mrs.  Van  Tyne's  be  relied  on  ?  It  has  been 
shown  that  he  formerly  resided  in  Washington, 
was  in  the  employment  of  his  brother,  then  in 


that  John    Surratt,  Payne, 

At/crodt,  and  perhaps  Spangler  and  Herold, 
were  the  principal  accomplices  of  Booth,  they 
have  not  shown  that  O'Laughlin  was  ever  at 
that  house,  or  was  ever  knoAvn  to  any  of  those 
parties.  When  arrested,  no  arias  were  found 
on  him,  nor  anything  indicating  any  deadly  or 
illegal  purpose,  of  any  kind. 

Now,  if  I  am  right  in  my  position  that  no  act 


business  here,  and  that  he  has  constantly  had  or  word  of  O'Laughlin  himself  has  been  shown 
to  visit  Washington  since,  to  make  collections,  - 
solicit  orders,  and  deliver  merchandise,  and 
that  on  the  very  day  of  his  last  visit,  a  month 
before  the  assassination,  he  came  down  for  his 
brother,  upon  business,  about  which  he  was  tel 
egraphed  the  next  day.  In  this  state  of  affairs, 
nothing  was  more  natural  than  that  he  should 
occupy  a  room  with  a  fellow-townsman,  Arnold; 
but  that  that  had  no  reference  to  anything  in 
which  Booth  or  Arnold  was  concerned,  an  ex 
amination  of  dates  will  show.  Mrs.  Van  Tyne 
does  not  profess  to  know  anything  of  the  rela 
tions  between  Arnold  and  O'Laughlin,  nor 
could  she  know  which  of  them  was  actually 
present  in  her  lodgings  at  any  particular  time. 
But  site  fixes  the  beginning  of  this  occupancy 
on  the  10th  of  February.  Now,  Mr.  Manlsby 
shows  that  O'Laughlin  was  at  home  on  the  14th 
of  February,  and  remained  there  two  weeks — 
that  is,  to  the  end  of  the  month.  So  that,  as 
far  as  appears,  he  was  in  Washington  but  four 
days  during  the  whole  month  of  February  ;  and, 
by  looking  at  Bunker's  testimony,  it  will  be 


nor  any  independent  fact,  connecting  him  with 
any  conspiracy,  then  it  is  very  plain  that  no 
act  or  declaration  of  any  third  person  is  com 
petent  evidence  against  him.  The  rule  of  law, 
under  this  head,  is  too  plain  to  be  misunder 
stood. 

The  fact  of  conspiracy  between  A  and  B  can 
never  be  proved  against  A  by  the  mere  declara 
tions  of  B;  but  if  it  once  be  proved  by  the 
declarations  or  acts  of  A  himself,  then  B's 
declarations,  accompanying  some  act  done  in 
furtherance  of  the  common  design,  would  be 
evidence,  but  they  would  not  be  evidence  if 
made  casually,  or  after  the  conspiracy  is  either 
executed  or  abandoned. 

Thus,  Professor  Greenleaf  says  (vol.  I,  #  III): 
"The  same  principles  apply  to  the  acts  and 
declarations  of  one  of  a  company  of  conspira 
tors,  in  regard  to  the  common  design,  as  affecting 
his  fellows.  Here  a  foundation  must  first  be 
laid  by  proof  sufficient,  in  the  opinion  of  the 
judge,  to  establish,  prima  facie.,  the  fact  of  con 
spiracy  between  the  parties,  or  proper  to  be  laid 


THE    CONSPIRACY    TRIAL. 


349 


before  the  jury,  as  tending  to  establish  that 
fact.  The  connection  of  the  individual  in  the  un 
lawful  enterprise  being  thus  shown,  every  act  and 
declaration  of  each  member  of  the  confederacy, 
in  pursuance  of  ihc  original  concerted  plan,  is,  in 
contemplation  of  law,  the  act  and  declaration 
of  them  all,"  etc.  "Sometimes,  for  the  sake  of 
convenience,  the  acts  and  declarations  of  one 
are  admitted  in  evidence,  before  sufficient  proof 


considering  them,  I   heat,  the   oases  of  Arnold 
and  O'Laughlin  together. 

If  I  have  been  correct  in  my  analysis  of  the 
proof,  I  have  shown,  that  no  active  design 
against  the  life  of  the  President  was  on  foot, 
between  January  and  the  early  part  of  April; 
and  I  have  further  shown,  from  the  evidence  of 
the  Government,  that  during  that  interval, 
Booth  was  contriving  an  entirely  different  pro- 


is  given  of  the  conspiracy,  the  prosecutor  un-|  ject — the  capture  of  the  President  and  others, 
del-taking  to  furnish  such  proof  of  conspiracy  It  has  further  appeared  that  that  project  was 
in  a  subsequent  stage  of  the  cause.  But  this  { abandoned,  and  the  date  of  its  abandonment  is 
rests  in  the  discretion  of  the  judge,  and  is  not! fixed  about,  by  facts  referred  to  by  Booth,  to- 
permitted,  except  under  peculiar  and  urgent!  wit:  the  defection  of  some  of  the  parties,  the 
circumstances,  lest  the  jury  should  be  misled  to  j  sale  of  horses,  etc.,  and  that  date  is  ascertained 
infer  the  fact  itself,  of  the  conspiracy,  from  the  ;  to  have  been  about  the  middle  of  March. 
declarations  of  strangers.  And  here,  also,  care  Now,  it  is  clear,  that  if  any  connection  is 
must  be  taken  that  the  acts  and  declarations  shown  between  Booth  on  one  hand,  and 
thus  admitted  be  those  only  which  were  made  O'Laughlin  and  Arnold  on  the  other,  it  existed 
and  done  during  the  pendency  of  the  criminal !  only  during  the  period  when  this  absurd  pro- 
enterprise,  and  in  furtherance  of  its  object.'''  i  ject  of  capture  was  agitated,  and  terminated 

If  they  took  place  at  a  subsequent  period,  [with  that.  Their  fitful  stay  in  Washington  was 
and  are,  therefore,  merely  narrative  of  past  oc-  j  only  between  February  10th  and  March  18th. 
currences,  they  are,  as  we  have  just  seen,  to  be  |  By  Arnold's  confession,  it  would  appear  that 
refused.  he,  and  if  he  is  not  mistaken,  O'Laughlin,  at- 

Aud,  as  Russell  says  [v.  2,  p.  097]:  '•  But  I  tended  one  meeting  about  the  middle  of  March, 
what  one  of  the  party  may  have  been  heard  to  j  to  consider  the  plan  of  capture ;  but  so  imma- 
say  at  some  other  time,  as  to  the  share  which  |  ture  was  the  plan,  and  so  slight  his  connection 
some  of  the  others  had  in  the  execution  of  the  i  with  it,  that  he  did  not  even  know  the  names 
common  design,  or  as  to  the  object  of  the  con-  i  of  the  others  at  the  meeting — two  in  number — 
spiracy,  can  not,  it  is  conceived,  be  admitted  as  I  besides  Booth,  Surratt  and  Atzerodt.  At  that 
evidence  to  affect  them,  on  their  trial  for  the  meeting,  as  might  have  been  expected,  the  dif- 
same  offense."  ficulties  of  the  scheme  became  apparent,  and  a 

It  is  clear,  then,  that  Arnold's  oral  confession  I  rupture  ensued  between  him  and  Booth  ;  the 
is  not  admissible  against  O'Laughlin,  for  two  j  whole  scheme  fell  through,  and  he  and  O'Laugh- 


rcasons,  viz. :  first,  because  no  conspiracy  be 
tween  them  had  first  been  proved  by  other  evi 
dence;  and  next,  because  it  was  not  made  in 
furtherance  or  prosecution  of  any  conspiracy, 
but  as  to  a  past  transaction.  It  is  pure  hear 
say,  inadmissible  because  of  the  double  chance 
of  mistakes — mistake  in  the  witness  as  to  the 
third  person's  declarations,  and  mistake  of  the 
third  person  himself.  The  same  is  to  be  said 
of  casual  remarks  made  by  him  to  third  per 
sons,  as  to  the  nature  of  his  or  their  business, 
not  made  in  the  prosecution  and  furtherance  of 
that  business. 

On-  the  same  principle,  neither  could  any  act 
or  declaration  of  Booth  be  evidence  against 
him.  We  have  nothing  of  this  sort  but  the 
sending  of  a  letter,  the  contents  of  which  are  en 
tirely  unknown,  and  the  sen  ding  of  the  telegrams 
of  March  13  and  March  27,  asking  him  to  come 
to  Washington.  But  without  proof  of  conspir 
acy,  from  another  source,  this  would  be  inad 
missible  against  O'Laughlin.  Otherwise,  it 
would  be  in  the  power  of  any  man  to  ruin  an 
enemy,  by  writing  to  him  or  telegraphing  to 
him  in  terms  which  assumed  the  existence  of 
some  guilty  plot  between  them ;  and  these  acts 
are  consistent  with  the  theory  of  a  mere  at 
tempt  to  persuade  him  into  a  conspiracy,  which 
he  would  not  yield  to.  If,  then,  these  acts  of 
Booth,  and  declarations  of  Arnold  be  rejected 
as  evidence,  the  case  is  utterly  bare  of  proof 
against  O'Laughlin  of  any  conspiracy  what 
ever. 

But  suppose  all  these  acts  and  declarations 
admitted,  let  us  see  what  they  prove;  and  in 


lin,  immediately  after,  left  for  Baltimore. 
Booth  told  him  he  might  sell  the  arms  he  had 
given  him;  and,  in  fact,  it  is  proved  that  he 
gave  part  of  them  away,  shortly  after,  to  his 
brother.  As  to  O'Laughlin,  this  confession 
proves  nothing  but  his  presence  at  this  single 
meeting.  This  was  the  beginning  and  the  end 
of  their  connection  with  Booth  in  any  scheme 
whatever  of  a  political  character;  and,  in  this, 
it  is  evident  that  he  was«the  arch-contriver,  and 
they  the  dupes.  And  when  they  had  once  es 
caped  his  influence,  although  he  still  evidently 
clung  to  his  design,  and  telegraphed  and 
wrote,  and  called  to  see  them,  it  is  evident  that 
they  refused  to  heed  the  voice  of  the  charmer, 
charm  he  never  so  wisely.  From  O'Laughlin 
he  received  no  response  at  all;  from  Arnold, 
only  the  letter  offered  in  evidence.  There  are 
expressions  in  the  letter  which  look  to  a  con 
tingent  renewal  of  their  relations  in  the  fu 
ture  ;  but  they  were  employed  to  parry  his  im 
portunities  for  the  present.  Certainly,  all  con 
nection  ceased  from  that  time. 

If,  therefore,  any  conspiracy  at  all  be  proved, 
by  the  utmost  latitude  of  evidence,  against 
these  two  accused,  it  was  a  mere  unacted,  still- 
scheme,  scarce  conceived  before  abandoned,  of 
a  nature  wholly  different  from  the  offense  de 
scribed  in  this  charge,  the  proof  of  which  does 
not  sustain  this  charge,  and  of  which  the  ac 
cused  could  not  be  convicted  upon  this  trial; 
for  this  Court,  as  we  have  seen,  is  bound  by  the 
rules  of  evidence  which  prevail  in  others,  and 
one  of  the  most  important  is,  that  the  proof 
must  correspond  with  the  charge  or  indictment, 


350 


ARGUMENT    OP    WALTER   S.    COX. 


and  sliow  the  same  offense,  or  the  accused  is 
entitled  to  acquittal. 

And  there  is  no  evidence  which  connects 
these  two  accused  with  that  dreadful  conspir 
acy  which  forms  the  subject  of  this  charge. 
There  is  nothing  to  show  that  during  their 
brief  intercourse  with  Booth,  in  Washington, 
that  nefarious  design  was  agitated  at  all,  cer 
tainly  none  that  it  was  even  disclosed  to  them; 
and  if  such  conspiracy  had  any  existence,  it 
was  in  a  state  of  slumber  and  suspense,  await 
ing  that  sanction  without  which  it  had  no  mo 
tive,  nor  end,  nor  aim,  nor  life. 

I  state,  then,  the  following  conclusions  as  es 
tablished,  viz.: 

1.  That  the  accused,  Samuel  Arnold  and  Mi 
chael  O'Laughlin,  had  no  part  whatever  in  the 
execution  of  the  conspiracy  set   forth  in  this 
charge  and  its  specification. 

2.  That  if  they  were  implicated  in  such  con 
spiracy,  they  withdrew  from  it  and  abandoned 
it  while    yet  wholly    unexecuted,    and    resting 
merely   in  intention,  and  are   not   responsible 
for  any  of  the  acts  subsequently  done   in  pui-- 
suance  of  it. 

3.  That  there  is  no  legal  and  complete  evi 
dence  implicating  O'Laughlin  in  any  conspii*- 
acy    whatever,    and    none   implicating    either 
O'Laughlin    or    Arnold     in     the     conspiracy 
charged. 


4.  That  if  there  in  evidence  against  them  of 
any  conspiracy,  it  is  of  one  wholly  different 
from  that  set  forth  in  the  charge  and  specifica 
tion,  and  upon  these  they  must  be  wholly  ac 
quitted. 

I,  therefore,  claim  for  them  an  absolute  and 
unqualified  acquittal.  That  the  accused  were 
wrong  in  ever  joining  the  rebellion  against 
their  Government,  no  one  will  deny  ;  that  they 
were  wrong  in  ever  listening  for  a  moment,  if 
they  ever  did,  to  any  proposition  from  that 
wicked  schemer,  Booth,  inimical  to  their  Gov 
ernment,  no  one  will  deny.  But  it  would  be 
to  insult  the  intelligence  of  this  Court  to  waste 
time  in  showing  that  this  Court  are  not  sitting 
in  judgment  on  all  the  errors  in  the  lives  of 
these  accused,  but  to  decide  the  single  question 
whether  they  are  guilty  of  conspiracy  to  kill 
and  murder  the  President,  Vice-President,  Sec 
retary  of  State,  and  General  in  command  of 
the  armies  of  the  United  States,  and  of  the  acts 
charged  against  them  severally  in  pursuance 
of  said  conspiracy. 

And  now,  Mr.  President  and  gentlemen, 
with  all  the  sense  of  responsibility  the  occa 
sion  is  fitted  to  inspire,  I  commit  to  you  the 
lives,  liberties,  and  good  names  of  my  clients, 
to  be  dealt  with  by  you  accoi-ding  to  the  law 
and  evidence,  without  partiality,  favor,  or  af 
fection.  MICHAEL  O'LAUGHLLN, 
SAMUEL  ARNOLD. 


IN    REPLY    TO    THE    SEVERAL 

ARGUMENTS  IN  DEFENSE  OF  MARY  E.  SURRATT 

AND  OTHERS,  CHARGED  WITH  CONSPIRACY  AND  THE  MURDER  OF  ABRAHAM 
LINCOLN,  LATE  PRESIDENT  OF  THE  UNITED  STATES,  ETC. 

BY    THE 

HON.    JOHN    A.    B  ING  HAM, 

Special  Judge  Advocate. 


May  it  please  the  Court: 

The  conspiracy  here  charged  and  specified, 
and  the  acts  alleged  to  have  been  committed  in 
pursuance  thereof,  and  with  the  intent  laid, 
constitute  a  crime  the  atrocity  of  which  has 
sent  a  shudder  through  the  civilized  world.  All 
that  was  agreed  upon  and  attempted  by  the  al 
leged  inciters  and  instigators  of  this  crime 
constitutes  a  combination  of  atrocities  with 
scarcely  a  parallel  in  the  annals  of  the  human 
race.  Whether  the  prisoners  at  your  bar  are 
guilty  of  the  conspiracy  and  the  acts  alleged 
to  have  been  done  in  pursuance  thereof,  as  set 
forth  in  the  charge  and  specification,  is  a  ques 
tion  the  determination  of  which  rests  solely 
with  this  honorable  Court,  and  in  passing  upon 
which  this  Court  are  the  sole  judges  of  the  law 
and  the  fact. 

In  presenting  my  views  upon  the  questions 
of  law  raised  by  the  several  counsel  for  the 
defense,  and  also  on  the  testimony  adduced 
for  and  against  the  accused,  I  desire  to  be  just 
to  them,  just  to  you,  just  to  my  country,  and 
just  to  my  own  convictions.  The  issue  joined 
involves  the  highest  interests  of  the  accused, 
and,  in  my  judgment,  the  highest  interests  of 
the  whole  people  of  the  United  States. 

It  is  a  matter  of  great  moment  to  all  the  peo 
ple  of  this  country  that  the  prisoners  at  your 
bar  be  lawfully  tried  and  lawfully  convicted 
or  acquitted.  A  wrongful  and  illegal  convic 
tion  or  a  wrongful  and  illegal  acquittal  upon 
this  dread  issue  would  impair  somewhat  the 
security  of  every  man's  life,  and  shake  the 
stability  of  the  republic. 

The  crime  charged  and  specified  upon  your 
record  is  not  simply  the  crime  of  murdering  a 
human  being,  but  it  is  the  crime  of  killing  and 
murdering,  on  the  14th  day  of  April,  A.  D. 
1865,  within  the  military  department  of  Wash 
ington  and  the  intrenched  lines  thereof,  Abra 
ham  Lincoln,  then  President  of  the  United 
States,  and  commander-in-Chief  of  the  army 
and  navy  thereof;  and  then  and  there  assault 
ing,  with  intent  to  kill  and  murder,  William  H. 
Seward,  then  Secretary  of  State  of  the  United 


States;  and  then  and  there  lying  in  wait  to 
kill  and  murder  Andrew  Johnson,  then  Vice- 
President  of  the  United  States,  and  Ulysses  S. 
Grant,  then  Lieutenant-General  and  in  com 
mand  of  the  armies  of  the  United  States,  in 
pursuance  of  a  treasonable  conspiracy  entered 
into  by  the  accused  with  one  John  Wilkcs 
Booth,  and  John  II.  Surratt,  upon  the  instiga 
tion  of  Jefferson  Davis,  Jacob  Thompson,  and 
George  N.  Sanders  and  others,  with  intent 
thereby  to  aid  the  existing  rebellion  and  sub 
vert  the  Constitution  and  laws  of  the  United 
States. 

The  rebellion,  in  aid  of  which  this  conspiracy 
was  foi'med  and  this  great  public  crime  com- 
|  mitted,  was  prosecuted  for  the  vindication  of 
no  right,  for  the  redress  of  no  wrong,  but  was 
itself  simply  a  criminal  conspiracy  and  gigantic 
assassination.  In  resisting  and  crushing  this 
rebellion  the  American  people  take  no  step 
backward,  and  cast  no  reproach  upon  their  past 
history.  That  people  now,  as  ever,  proclaim 
the  self-evident  truth  that  whenever  govern 
ment  becomes  subversive  of  the  ends  of  its 
creation,  it  is  the  right  and  duty  of  the  people 
to  alter  or  abolish  it;  but  during  these  four 
years  of  conflict  they  have  as  clearly  pro 
claimed,  as  was  their  right  and  duty,  both  by 
law  and  by  arms,  that  the  Government  of  their 
own  choice,  humanely  and  wisely  administered, 
oppressive  of  none  and  just  to  all,  shall  not  be 
overthrown  by  privy  conspiracy  or  armed  rebel 
lion. 

What  wrong  had  this  Government  or  any  of 
its  duly  constituted  agents  done  to  any  of  the 
guilty  actors  in  this  atrocious  rebellion?  They 
themselves  being  witnesses,  the  Government 
which  they  assailed  had  done  no  act,  and  at 
tempted  no  act,  injurious  to  them,  or  in  any 
sense  violative  of  their  rights  as  citizens  and 
men;  and  yet  for  four  years,  without  cause  of 
complaint  or  colorable  excuse,  the  inciters  and 
instigators  of  the  conspiracy  charged  upon 
your  record  have,  by  armed  rebellion,  resisted 
the  lawful  authority  of  the  Government,  and 
attempted  by  force  of  arms  to  blot  the  Republic 
from  the  map  of  nations.  Now  that  their 

361 


352 


THE    CONSPIRACY   TRIAL 


battalions  of  treason  are  broken  and  flying  in-Chief,  to  prevent  the  consummation  of  this 
before  the  victorious  legions  of  the  Republic,  traitorous  conspiracy  in  aid  of  this  treasonable 
the  chief  traitors  in  this  great  crime  against  rebellion.  The  civil  courts,  sav  the  counsel, 
your  Government,  secretly  conspire  with  are  open  in  the  District.  I  answer,  they  arc 
their  hired  confederates  to  achieve  by  assassi-  j  closed  throughout  half  the  Republic,  and  were 
nation,  if  possible,  what  they  have  in  vain  [  only  open  in  this  District  on  the  day  of  this 
attempted  by  wager  of  battle,  the  overthrow  '  confederation  and  conspiracy,  on  the  day  of 
of  the  Government  of  the  United  States  and  the  traitorous  assassination  of  your  1'resident, 
the  subversion  of  its  Constitution  and  laws,  and  are  only  open  at  this  hour  by  force  of  the 
It  is  for  this  secret  conspiracy  in  the  interest  of '  bayonet.  Does  any  man  suppose  that  if  the 
the  rebellion,  formed  at  the  instigation  of  the  :  military  forces  which  garrison  the  intreiich- 
chiefs  in  that  rebellion,  and  in  pursuance  of '  ments  of  your  capital,  fifty  thousand  strong, 
which  the  acts  charged  and  specified  are  al- !  were  all  withdrawn,  the  rebel  bands  who  this 
leged  to  have  been  done,  and  with  the  intent  day  infest  the  mountain  passes  in  your  vicinity 
laid,  that  the  accused  are  upon  trial.  \  would  allow  this  Court,  or  any  court,  to  remain 

The  Government,  in  preferring  this  charge,  !  open  in  this  District  for  the  trial  of  these  their 
does  not  indict  the  whole  people  of  an}'  State  I  confederates,  or  would  permit  your  executive 
or  section,  but  only  the  alleged  parties  to  this  '  officers  to  discharge  the  trust  committed  to 
unnatural  and  atrocious  conspiracy  and  crime,  them,  for  twenty-four  hours? 


The  President  of  the  United  States,   in  the  dis- 


At  the  time  this  conspiracy  was  entered  into, 


charge  of  his  duty  as  Commander-in-Chief  of  and  when  this  Court  was  convened  and  entered 
the  army,  and  by  virtue  of  the  power  vested  in  i  upon  this  trial,  the  country  was  in  a  state  of 
him  by  the  Constitution  and  laws  of  the  United  ]  civil  Avar.  An  army  of  insurrectionists  have, 
States,  has  constituted  you  a  military  court,  to  I  since  this  trial  began,  shed  the  blood  of  Union 
hear  and  determine  the  issue  joined  against  I  soldiers  in  battle.  The  conspirator,  by  whose 


the  accused,  and  has  constituted  you  a  court 
for  no  other  purpose  whatever.  To  this  charge 
and  specification  the  defendants  have  pleaded, 
first,  that  this  court  has  no  jurisdiction  in  the 
premises;  and,  second,  not  guilty.  As  the 
Court  has  already  overruled  the  plea  to  the  ju 
risdiction,  it  would  be  passed  over  in  silence 
by  me  but  for  the  fact,  that  a  grave  and  elabo 
rate  argument  has  been  made  by  counsel  for 
the  accused,  not  only  to  show  the  want  of  juris 
diction,  but  to  arraign  the  President  of  the 
United  States  before  the  country  and  the  world 
as  a  usurper  of  power  over  the  lives  and  the 
liberties  of  the  prisoners.  Denying  the  author 
ity  of  the  President  to  constitute  this  Com 
mission  is  an  averment  that  this  tribunal  is  not 
a  court  of  justice,  has  no  legal  existence,  and 
therefore  no  power  to  hear  and  determine  the 
issue  joined.  The  learned  counsel  for  the  ac 
cused,  when  they  make  this  averment  by  way 
of  argument,  owe  it  to  themselves  and  to  their 
country  to  show  how  the  President  could  oth 
erwise  lawfully  and  efficiently  discharge  the 
duty  enjoined  upon  him  by  his  oath  to  protect, 
preserve,  and'  defend  the  Constitution  of  the 
United  States,  and  to  take  care  that  the  laws 
be  faithfully  executed. 

An  existing  rebellion  is  alleged  and  not  de 
nied.  It  is  charged  that  in  aid  of  this  existing 
rebellion  a  conspiracy  was  entered  into  by  the 
accused,  incited  and  instigated  thereto  by  the 
chiefs  of  this  rebellion,  to  kill  and  murder  the 
executive  officers  of  the  Government,  and  the 
commander  of  the  armies  of  the  United  States, 
and  that  this  conspiracy  was  partly  executed 
by  the  murder  of  Abraham  Lincoln,  and  by  a 
murderous  assault  upon  the  Secretary  of  State ; 
and  counsel  reply,  by  elaborate  argument,  that 
although  the  facts  be  as  charged,  though  the 
conspirators  be  numerous  and  at  large,  able 
and  eager  to  complete  the  horrid  work  of  as 
sassination  already  begun  within  your  military 
encampment,  yet  the  successor  of  your  mur 
dered  President  is  a  usurper  if  he  attempts  by 
military  force  and  martial  law,  as  Commander- 


hand  his  co-conspirators,  whether  present  or 
absent,  jointly  murdered  the  President  on  the 
14th  of  last  April,  could  not  be  and  was  not 
arrested  upon  civil  process,  but  was  pursued  by 
the  military  power  of  the  Government,  cap 
tured  and  slain.  Was  this  an  act  of  usurpa 
tion  ? — a  violation  of  the  right  guaranteed  to 
that  fleeing  assassin  by  the  very  Constitution 
against  which  and  for  the  subversion  of  which 
he  had  conspired  and  murdered  the  President? 
Who  in  all  this  land  is  bold  enough  or  base 
enough  to  assert  it? 

I  would  be  glad  to  know  by  what  law  the 
President,  by  a  military  force,  acting  only  upon 
his  military  orders,  is  justified  in  pursuing, 
arresting,  and  killing  one  of  these  conspir 
ators,  and  is  condemned  for  arresting  in 
like  manner  and  by  his  order  subjecting  to  trial, 
according  to  the  laws  of  war,  any  or  all  of  the 
other  parties  to  this  same  damnable  conspiracy 
and  crime,  by  a  military  tribunal  of  justice — a 
tribunal  I  may  be  pardoned  for  saying,  whose 
integrity  and  impartiality  are  above  suspicion, 
and  pass  unchallenged  even  by  the  accused 
themselves. 

The  argument  against  the  jurisdiction  of  this 
Court  rests  upon  the  assumption  that,  even  in 
time  of  insurrection  and  civil  war,  no  crimes 
are  cognizable  and  punishable  by  military 
commission  or  court-martial,  save  crimes  com 
mitted  in  the  military  or  naval  service  of  the 
United  States,  or  in  the  militia  of  the  several 
States  when  called  into  the  actual  service  of  the 
United  States.  But  that  is  not  all  the  argu 
ment ;  it  affirms  that,  under  this  plea  to  tlie  ju 
risdiction,  the  accused  have  the  right  to  demand 
that  this  Court  shall  decide  that  it  is  not  a  judi 
cial  tribunal,  and  has  no  legal  existence. 

This  is  a  most  extraordinary  proposition,  that 
the  President,  under  the  Constitution  and  laws 
of  the  United  States,  was  not  only  not  author 
ized,  but  absolutely  forbidden  to  constitute 
this  Court,  for  the  trial  of  the  accused,  and, 
therefore,  the  act  of  the  President  is  void,  and 
the  gentlemen  who  compose  the  tribunal,  with- 


ARGUMENT   OF   JOHN   A.   BINGHAM. 


353 


out  judicial  authority  or  power,  and  are  not, 
in  fact  or  in  law,  a  court. 

That  I  do  not  misstate  what  is  claimed  and 
attempted  to  be  established  on  behalf  of  the 
accused,  I  ask  the  attention  of  the  Court  to  the 
following  as  the  gentleman  s  (Mr.  Johnson's) 
propositions: 

That  Congress  has  not  authorized,  and,  under 
the  Constitution,  can  not  authorize  the  ap 
pointment  of  this  Commission. 

That  this  Commission  has,  "as  a  court,  no 
legal  existence  or  authority,"  because  the  Pres 
ident,  who  alone  appointed  the  Commission,  has 
no  such  power. 

That  his  act  "is  a  mere  nullity,  the  usurpa 
tion  of  a  power  not  vested  in  the  Executive, 
and  conferring  no  authority  upon  you." 

We  have  had  no  common  exhibition  of  law- 
learning  in  this  defense,  prepared  by  a  Senator 
of  the  United  States ;  but,  with  all  his  expe 
rience,  and  all  his  learning  and  acknowledged 
ability,  he  has  failed,  utterly  failed,  to  show 
how  a  tribunal,  constituted  and  sworn,  as  this 
has  been,  to  duly  try  and  determine  the  charge 
and  specification  against  the  accused,  and,  by 
its  commission,  not  authorized  to  hear  or  deter 
mine  any  other  issues  whatever,  can  rightfully 
entertain,  or  can,  by  any  possibility,  pass 
upon  the  proposition  presented  by  this  argu 
ment  of  the  gentleman  for  its  considera 
tion. 

The  members  of  this  Court  are  officers  in  the 
army  of  the  United  States,  and,  by  order  of  the 
President,  as  Commander-in-Chief,  are  required 
to  discharge  this  duty,  and  are  authorized,  in 
this  capacity,  to  discharge  no  other  duty,  to 
exercise  no  other  judicial  power.  Of  course, 
if  the  commission  of  the  President  constitutes 
this  a  court  for  the  trial  of  this  case  only,  as 
such  court  it  is  competent  to  decide  all  ques 
tions  of  law  and  fact  arising  in  the  trial  of  the 
case.  But  this  Court  has  no  power,  as  a  Court, 
to  declare  the  authority  by  which  it  was  con 
stituted  null  and  void,  and  the  act  of  the 
President  a  mere  nullity,  a  usurpation.  Has  it 
been  shown  by  the  learned  gentleman,  who 
demands  that  this  Court  shall  so  decide,  that 
officers  of  the  army  may  lawfully  and  consti 
tutionally  question,  in  this  manner,  the  orders 
of  their  Commander-in-Chief,  disobey,  set  them 
aside,  and  declare  them  a  nullity  and  a  usurpa 
tion?  Even  if  it  be  conceded  that  the  officers, 
thus  detailed  by  order  of  the  Commander-in- 
Chief,  may  question  and  utterly  disregard  his 
order,  and  set  aside  his  authority,  is  it  possible, 
in  the  nature  of  things,  that  any  body  of  men, 
constituted  and  qualified  as  a  tribunal  of  jus 
tice,  can  sit  in  judgment  upon  the  proposition 
that  they  are  not  a  court  for  any  purpose,  and 
finally  decide  judicially,  as  a  court,  that  the 
Government  which  appointed  them  was  with 
out  authority  ?  Why  not  crown  the  absurdity 
of  this  proposition  by  asking  the  several  mem 
bers  of  this  Court  to  determine  that  they  are 
not  men — living,  intelligent,  responsible  men! 
This  would  be  no  more  irrational  than  the 
question  upon  which  they  are  asked  to  pass. 
How  can  any  sensible  man  entertain  it  1  Be 
fore  he  begins  to  reason  upon  the  proposition 
he  must  take  for  granted,  and,  therefore,  de- 

23 


cide  in  advance,  the  very  question  in  dispute, 
to- wit,  his  actual  existence. 

So  with  the  question  presented  in  this  re 
markable  argument  for  the  defense;  before 
this  Court  can  enter  upon  the  inquiry  of  the 
want  of  authority  in  the  President  to  consti- 
i  tute  them  a  court,  they  must  take  for  granted 
and  decide  the  very  point  in  issue,  that  the 
President  had  the  authority,  and  that  they  are 
in  law  and  in  fact  a  judicial  tribunal;  and, 
having  assumed  this,  they  are  gravely  asked, 
as  such  judicial  tribunal,  to  finally  and 
solemnly  decide  and  declare  that  they  are  not 
in  fact  or  in  law  a  judicial  tribunal,  but  a 
mere  nullity  and  nonentity.  A  most  lame 
and  impotent  conclusion  ! 

As  the  learned  counsel  seems  to  have  great 
reverence  for  judicial  authority,  and  requires 
precedent  for  every  opinion,  I  may  be  par 
doned  for  saying  that  the  objection  which  I 
urge  against  the  possibility  of  any  judicial 
tribunal,  after  being  officially  qualified  as 
such,  entertaining,  much  less  judicially  de 
ciding,  the  proposition  that  it  has  no  legal 
existence  as  a  court,  and  that  the  appointment 
was  a  usurpation,  and  without  authority  of 
law,  has  been  solemnly  ruled  by  the  Supreme 
Court  of  the  United  States. 

That  Court  say  :  "  The  acceptance  of  the  ju 
dicial  office  is  a  recognition  of  the  authority 
from  which  it  is  derived.  If  a  court  should 
enter  upon  the  inquiry  (whether  the  authority 
of  the  Government  which  established  it  ex 
isted),  and  should  come  to  the  conclusion  that 
the  Government  under  which  it  acted  had  been 
put  aside,  it  would  cease  to  be  a  court,  and  be 
incapable  of  pronouncing  a  judicial  decision 
upon  the  question  it  undertook  to  try.  If  it 
decides  at  all,  as  a  court,  it  necessarily  affirms 
the  existence  and  authority  of  the  Government 
under  which  it  is  exercising  judicial  power." 
Luther  vs.  JSorden,  7  Howard,  40. 

That  is  the  very  question  raised  by  the 
learned  gentleman  in  his  argument,  that 
there  was  no  authority  in  the  President,  by 
whose  act  alone  this  tribunal  was  constituted, 
to  vest  it  with  judicial  power  to  try  this  issue; 
and,  by  the  order  upon  your  record,  as  has 
already  been  shown,  if  you  have  no  power  to 
try  this  issue,  for  want  of  authority  in  the 
Commander-in-Chief  to  constitute  you  a  court, 
you  are  no  court,  and  have  no  power  to  try 
any  issue,  because  his  order  limits  you  to  this 
issue,  and  this  alone. 

It  requires  no  very  profound  legal  attain 
ments  to  apply  the  ruling  of  the  highest  ju 
dicial  tribunal  of  this  country,  just  cited,  to 
the  point  raised,  not  by  the  pleadings,  but  by 
the  argument.  This  Court  exists  as  a  judicial 
tribunal  by  authority  only  of  the  President  of 
the  United  States;  the  acceptance  of  the  office 
is  an  acknowledgement  of  the  validity  of  the 
authority  conferring  it,  and,  if  the  President 
had  no  authority  to  order,  direct  and  constitute 
this  Court  to  try  the  accused,  and,  as  is 
claimed,  did,  in  so  constituting  it,  perform  an 
unconstitutional  and  illegal  act,  it  necessarily 
results  that  the  order  of  the  President  is  void 
and  of  no  effect;  that  the  order  did  not,  and 
could  not,  constitute  this  a  tribunal  of  justice, 


354 


THE    CONSPIRACY    TRIAL. 


and,  therefore,  its  members  are  incapable  of  I  since,  was  a  general  in  the  service  of  the  coun- 
pronouncing  a  judicial  decision  upon  the  !  try,  and  as  such  in  his  department  in  the  West 
question  presented.  proclaimed  and  enforced  martial  law  by  the 

There  is  a  marked  distinction  between  the  j  constitution  of  military  tribunals  for  the  trial 
question  here  presented,  and  that  raised  by  a  i  of  citizens  not  in  the  land  or  naval  forces,  but 
plea  to  the  jurisdiction  of  a  tribunal  whose  j  who  were  guilty  of  military  offenses,  for  which 
existence,  as  a  court,  is  neither  questioned  nor  he  deemed  them  justly  punishable  before  mili- 
denied.  Here,  it  is  argued,  through  many  tary  courts,  and  accordingly  he  punished  them, 
padres,  bv  a  learned  Senator,  and  a  dis-  j  Is  the  gentleman  quite  sure,  when  that  account 
tinguished  lawyer,  that  the  order  of  the  Presi-  comes  to  be  rendered  for  these  alleged  uncon- 
dent,  by  whose  authority  alone  this  Court  is  stitutioual  assumptions  of  power,  that  he  will 
constituted  a  tribunal  of  military  justice,  is  I  not  have  to  answer  for  more  of  these  alleged 
unlawful;  if  unlawful  it  is  void  arid  of  no  violations  of  the  rights  of  citizens  by  illegal 


effect,  and  has  created  no  court;  therefore, 
this  body,  not  being  a  court,  can  have  no 
more  power  as  a  court,  to  decide  any  ques 
tion  whatever,  than  have  its  individual  mem 
bers  power  to  decide  that  they,  as  men,  do  not 
in  fact  exist. 

It  is  a  maxim  of  the  common  law — the 
perfection  of  human  reason — that  what  is 
impossible  the  law  requires  of  no  man. 

How  can  it  be  possible  that  a  judicial  tri 
bunal  can  decide  the  question  that  it  does 
not  exist,  any  more  than  that  a  rational  man 
can  decide  that  he  does  not  exist? 

The  absurdity  of  the  proposition,  so  elabo 
rately  urged  upon  the  consideration  of  this 
Court,  can  not  be  saved  from  the  ridicule  and 
contempt  of  sensible  men  by  the  pretense  that 
the  Court  is  not  asked  judicially  to  decide  that 
it  is  not  a  court,  but  only  that  it  has  no  juris 
diction  ;  for  it  is  a  fact  not  to  be  denied  that 
the  whole  argument  for  the  defense,  on  this 
point,  is,  that  the  President  had  not  the  law 
ful  authority  to  issue  the  order  by  which 
alone  this  Court  is  constituted,  and  that  the 
order  for  its  creation  is  null  and  void. 

Gentlemen  might  as  well  ask  the  Supreme 
Court  of  the  United  States,  upon  a  plea  to 
the  jurisdiction,  to  decide,  as  a  court,  that 
the  President  had  no  lawful  authority  to 
nominate  the  judges  thereof  severally  to  the 
Senate,  and  that  the  Senate  had  no  lawful 
authority  to  advise  and  consent  to  their  ap 
pointment,  as  to  ask  this  Court  to  decide,  as  a 
court,  that  the  order  of  the  President  of  the 
United  States  constituting  it  a  tribunal  for 
the  sole  purpose  of  this  trial  was  not  only 
without  authority  of  law,  but  against  and  in 
violation  of  law.  If  this  Court  is  not.  a  law 
ful  tribunal,  it  has  no  existence,  and  can  no 
more  speak  as  a  court  than  the  dead,  much 
less  pronounce  the  judgment  required  at  its 
hands,  that  it  is  not  a  court,  and  that  the  Pres 
ident  of  the  United  States,  in  constituting  it 
Buch  to  try  the  question  upon  the  charge  and 
specification  preferred,  has  transcended  his 
authority,  and  violated  his  oath  of  office. 

Before  passing  from  the  consideration  of  the 
proposition  of  the  learned  Senator,  that  this  is 
not  a  Court,  it  is  fit  that  I  should  notice  that 
another  of  the  counsel  for  the  accused  (Mr. 
Ewing)  has  also  advanced  the  same  opinion, 
certainly  with  more  directness  and  candor,  and 
without  any  qualification.  His  statement  is, 
"You,"  gentlemen,  "are  no  court  under  the 
Constitution."  This  remark  of  the  gentleman 
can  not  fail  to  excite  surprise,  when  it  is  remem 
bered  that  the  gentleman,  not  many  months 


arrests,  convictions,  and  executions,  than  any 
of  the  members  of  this  Court?  In  support  of 
his  opinion  that  this  is  no  court,  the  gentleman 
cites  the  3d  article  of  the  Constitution,  which 
provides  "  that  the  judicial  power  of  the  United 
States  !--hall  be  vested  in  one  Supreme  Court,  and 
such  inferior  courts  as  Congress  may  estab 
lish,"  the  judges  whereof  "shall  hold  their  offi 
ces  during  good  behavior." 

It.  is  a  sufficient  answer  to  say  to  the  gentle 
man,  that  the  power  of  this  Government  to  try 
and  punish  military  offenses  by  military  tribu 
nals  is  no  part  of  the  "judicial  power  of  the 
United  States,"  under  the  3d  article  of  the  Con 
stitution,  but  a  power  conferred  by  the  8th  sec 
tion  of  the  1st  article,  and  so  it  has  been  ruled 
by  the  Supreme  Court  in  Dyres  vs.  Hoover,  20 
Howard,  78.  If  this  power  is  so  conferred  by 
the  8th  section,  a  military  court  authorized  by 
Congress,  and  constituted  as  this  has  been,  to 
try  all  persons  for  military  crimes  in  time  of 
war,  though  not  exercising  "the  judicial  power" 
provided  for  in  the  3d  article,  is  nevertheless  a 
court  as  constitutional  as  the  Supreme  Court 
itself.  The  gentleman  admits  this  to  the  extent 
of  the  trial  by  courts-martial  of  persons  in  the 
military  or  naval  service,  and  by  admitting  it 
he  gives  up  the  point.  There  is  no  express  grant 
for  any  such  tribunal,  and  the  power  to  estab 
lish  such  a  court,  therefore,  is  implied  from  the 
provisions  of  the  8th  section,  1st  article,  that 
"Congress  shall  have  power  to  provide  and 
maintain  a  navy,"  and  also  "to  make  rules  for 
the  government  of  the  land  and  naval  forces." 
From  these  grants  the  Supreme  Court  infer  tho 
power  to  establish  courts-martial,  and  from  the 
grants  in  the  same  8th  section,  as  I  shall  notice 
hereafter,  that  "  Congress  shall  have  power  to 
declare  war,"  and  "  to  pass  all  laws  necessary 
and  proper  to  carry  this  and  all  other  powers 
into  effect,"  it  is  necessarily  implied  that  in 
time  of  war  Congress  may  authorize  military 
commissions,  to  try  all  crimes  committed  in  aid 
of  the  public  enemy,  as  such  tribunals  are  ;/e- 
cessary  to  give  effect  to  the  power  to  make  war 
and  suppress  insurrection. 

Inasmuch  as  the  gentleman  (Gen.  Ewing)  for 
whom,  personally,  I  have  a  high  regard  as  the 
military  commander  of  a  western  department, 
made  a  liberal  exercise,  under  the  order  of  the 
Commander-in-Chief  of  the  army,  of  this  power 
to  arrest  and  try  military  offenders  not  in  the 
land  or  naval  forces  of  the  United  States,  and 
inflicted  upon  them,  as  I  am  informed,  the  ex 
treme  penalty  of  the  law,  by  virtue  of  his  mili 
tary  jurisdiction,  I  wish  to  know  whether  lie 
proposes,  by  his  proclamation  of  the  personal 


ARGUMENT    OF   JOHN    A.    BINGIIAM. 


355 


responsibility  awaiting  all  such  usurpations  of  j  or  arrested   by  the  Executive  power.     Let  the 


people  decide  this  question;  and  in  doing  so, 
let  them  pass  upon  the  action  of  the  Senator  as 
well  as  upon  the  action  of  those  whom  he  so  ar 
rogantly  arraigns.  His  plea  in  behalf  of  an 
expiring  and  shattered  rebellion  is  a  fit  subject 
for  public  consideration  and  for  public  con 
demnation. 

Let  that  people  also  note,  that  while  the  learned 
gentleman  (Mr.  Johnson),  as  a  volunteer,  with 
out  pay,  thus  condemns  as  a  usurpation  the 
means  employed  so  effectually  to  suppress  this 
gigantic  insurrection,  the  New  York  News, 
whose  proprietor,  Benjamin  Wood,  is  shown  by 
the  testimony  upon  your  record  to  have  received 
from  the  agents  of  the  rebellion  twenty-five 
thousand  dollars,  rushes  into  the  lists  to  cham 
pion  the  cause  of  the  rebellion,  its  aiders  and 
abettors,  by  following  to  the  letter  his  colleague 
(Mr.  Johnson),  and  with  greater  plainness  of 
speech,  and  a  fervor  intensified,  doubtless,  by 
the  twenty-five  thousand  dollars  received,  and 
the  hope  of  more,  denounces  the  Court  as  a 
usurpation  and  threatens  the  members  with  the 
consequences ! 

The  argument  of  the  gentleman,  to  which  the 
Court  has  listened  so  patiently  and  so  long,  is  but 
an  attempt  to  show  that  it  is  unconstitutional 
for  the  Government  of  the  United  States  to  arrest 
upon  military  order  and  try  before  military  tri 
bunals  and  punish  upon  conviction,  in  accord 
ance  with  the  laws  of  war  and  the  usages  of 
nations,  all  criminal  offenders  acting  in  aid  of 
the  existing  rebellion.  It  does  seem  to  me  that 
the  speech  in  its  tone  and  temper  is  the  same  as 
that  which  the  country  has  heard  for  the  last 
four  years  uttered  by  the  armed  rebels  them 
selves  and  by  their  apologists,  averring  that  it 
was  unconstitutional  for  the  Government  of  the 

rebellion  that  but  yesterday  shook  the  heavens  j  United  States  to  defend  by  arms  its  own  right- 
with  their  infernal  enginery  of  treason  and 
filled  the  habitations  of  the  people  with  death. 
As  the  law  forbids  a  Senator  of  the  United 
States  to  receive  compensation,  or  fee,  for  de 
fending,  in  cases  before  civil  or  military  com 
missions,  the  gentleman  volunteers  to  make  a 
speech  before  this  Court,  in  which  he  denounces 


judicial  authority,  that  he  himself  shall  be 
subjected  to  the  same  stern  judgment  which  he 
invokes  against  others — that,  in  short,  he  shall 
be  drawn  and  quartered  for  inflicting  the  ex 
treme  penalties  of  the  law  upon  citizens  of  the 
United  States  in  violation  of  the  Constitution 
and  laws  of  his  country  ?  I  trust  that  his  error 
of  judgment  in  pronouncing  this  military  juris 
diction  a  usurpation  and  violation  of  the  Con 
stitution  may  not  rise  up  in  judgment  to  con 
demn  him,  and  that  he  may  never  be  subjected 
to  pains  and  penalties  for  having  done  his  duty 
heretofore  in  exercising  this  rightful  authority, 
and  in  bringing  to  judgment  those  who  con 
spired  against  the  lives  and  liberties  of  the 
people. 

Here  I  might  leave  this  question,  committing 
it  to  the  charitable  speeches  of  men,  but  for  the 
fact  that  the  learned  counsel  has  been  more 
careful  in  his  extraordinary  argument  to  de 
nounce  the  President  as  a  usurper  than  to  show 
how  the  Court  could  possibly  decide  that  it  has 
no  judicial  existence,  and  yet  that  it  has  judi 
cial  existence. 

A  representative  of  the  people  and  of  the 
rights  of  the  people  before  this  Court,  by  the 
appointment  of  the  President,  and  which  ap 
pointment  was  neither  sought  by  me  or  desired, 
I  can  not  allow  all  that  has  here  been  said  by 
way  of  denunciation  of  the  murdered  President 
and  his  successor  to  pass  unnoticed.  This  has 
been  made  the  occasion  by  the  learned  counsel, 
Mr.  Johnson,  to  volunteer,  not  to  defend  the 
accused,  Mary  E.  Surratt,  not  to  make  a  judi 
cial  argument  in  her  behalf,  but  to  make  a 
political  harangue,  a  partisan  speech  against 
his  Government  and  country,  and  thereby  swell 
the  cry  of  the  armed  legions  of  sedition  and 


the  action  of  the  Executive  Department  in  pro 
claiming  and  executing  martial  law  against 
rebels  in  arms,  their  aiders  and  abettors,  as  a 
usurpation  and  a  tyranny.  I  deom  it  my  duty 
to  reply  to  this  denunciation,  not  for  the  pur 
pose  of  presenting  thereby  any  question  for  the 
decision  of  this  Court1,  for  I  have  shown  that 
the  argument  of  the  gentleman  presents  no 
question  for  its  decision  as  a  Court,  but  to  repel, 
as  far  as  I  may  be  able,  tho  unjust  aspersion 
attempted  to  be  cast  upon  the  memory  of  our 
dead  President,  and  upon  the  official  conduct  of 
his  successor. 

I  propose  now  to  answer  fully  all  that  the 
gentleman  (Mr.  Johnson)  has  said  of  the  want 
of  jurisdiction  in  this  Court,  and  of  the  alleged 
usurpation  and  tyranny  of  the  Executive,  that 
the  enlightened  public  opinion  to  which  he  ap 
peals  may  decide  whether  all  this  denunciation 
is  just — whether  indeed  conspiring  against  the 
whole  people,  and  confederation  and  agreement 
in  aid  of  insurrection  to  murder  all  the  execu- 


ful  authority  and  the  supremacy  of  its  laws. 

It  is  as  clearly  the  right  of  the  republic  to  live 
and  to  defend  its  life  until  it  forfeits  that  right 
by  crime,  as  it  is  the  right  of  the  individual  to 
live  so  long  as  God  gives  him  life,  unless  he  for 
feits  that  right  by  crime.  I  make  no  argument 
to  support  this  proposition.  Who  is  there  here 
or  elsewhere  to  cast  the  reproach  upon  my  coun 
try  that  for  her  crimes  she  must  die  ?  Young 
est  born  of  the  nations  !  is  she  not  immortal  by 
all  the  dread  memories  of  the  past — by  that  sub 
lime  and  voluntary  sacrifice  of  the  present,  in 
which  the  bravest  and  noblest  of  her  sons  have 
laid  down  their  lives  that  she  might  live,  giving 
their  serene  brows  to  the  dust  of  the  grave,  and 
lifting  their  hands  for  the  last  t!me  amidst  the 
consuming  fires  of  battle!  I  assume,  for  the 
purposes  of  this  argument,  that  self-defense  is 
as  clearly  the  right  of  nations  as  it  is  the  ac 
knowledged  right  of  men,  and  that  the  Ameri 
can  people  may  do  in  the  defense  and  mainten 
ance  of  their  o\vri  rightful  authority  against  or 
ganized  armed  rebels,  their  aiders  and  abettors, 
whatever  free  and  independent  nations  any 
where  upon  tliis  globe,  in  time  of  war,  may  of 
right  do. 

All  this  is  substantially  denied  by  the  gentle 
man  in  the  remarkable  argument  which  he  has 


here  made. 


is  nothing  further  from  my 


live  officers  of  the  government,  can  not  be  checked)  purpose  than  to  do  injustice  to  the  learned  gen- 


356 


THE    CONSPIRACY   TRIAL. 


tleman  or  to  his  elaborate  and  ingenious  argu 
ment.  To  justify  what  1  have  already  said,  I 
may  be  permitted  here  to  remind  the  Court  that 
nothing  is  said  by  the  counsel  touching  the  con 
duct  of  the  accused,  Mary  E.  Surra  tt,  as  shown 
by  the  testimony ;  that  he  makes  confession  at 
the  end  of  his  arraignment  of  the  Government 
and  country,  that  he  has  not  made  such  argu 
ment,  and  that  he  leaves  it  to  be  made  by  her 
other  counsel.  He  does  take  care,  however,  to 
arraign  the  country  and  the  Government  for  con 
ducting  a  trial  with  closed  doors  and  before  a 
secret  tribunal,  and  compares  the  proceedings  of 
this  Court  to  the  Spanish  Inquisition,  using  the 
strongest  words  at  his  command  to  intensify  the 
horror  which  he  supposes  his  announcement  will 
excite  throughout  the  civilized  world. 

Was  this  dealing  fairly  by  this  Govern 
ment?  Was  there  anything  in  the  conduct  of 
the  proceedings  here  that  justified  any  such 
remark  ?  Has  this  been  a  secret  trial  ?  Has 
it  not  been  conducted  in  open  day,  in  the 
presence  of  the  accused,  and  in  the  presence 
of  seven  gentlemen  learned  in  the  law,  who 
appeared  from  day  to  day  as  their  counsel? 
Were  they  not  informed  of  the  accusation 
against  them?  Were  they  deprived  of  the 
right  of  challenge?  Was  it  not  secured  to 
them  by  law,  and  were  they  not  asked  to  ex 
ercise  it?  Has  any  part  of  the  evidence  been 
suppressed?  Have  not  all  the  proceedings 
been  published  to  the  world  ?  What,  then, 
was  done,  or  intended  to  be  done,  by  the  Gov 
ernment,  which  justifies  this  clamor  about  a 
Spanish  Inquisition  ? 

That  a  people  assailed  by  organized  treason 
over  an  extent  of  territory  half  as  large  as  the 
continent  of  Europe,  and  assailed  in  their 
very  capital  by  secret  assassins  banded  to 
gether  and  hired  to  do  the  work  of  murder  by 
the  instigation  of  these  conspirators,  may  not 
be  permitted  to  make  inquiry,  even  with 
closed  doors,  touching  the  nature  and  extent 
of  the  organization,  ought  not  to  be  asserted 
by  any  gentleman  who  makes  the  least  pre 
tensions  to  any  knowledge  of 'the  law,  either 
common,  civil  or  military.  Who  does  not 
know  that  at  the  common  law  all  inquisition 
touching  crimes  and  misdemeanors,  prepara 
tory  to  indictment  by  the  grand  inquest  of  the 
State,  is  made  with  closed  doors  ? 

In  this  trial,  no  parties  accused,  nor  their 
counsel,  nor  the  reporters  of  this  Court,  were 
at  any  time  excluded  from  its  deliberations 
when  any  testimony  was  being  taken ;  nor 
has  there  been  any  testimony  taken  in  the 
case  with  closed  doors,  save  that  of  a  few  wit 
nesses  who  testified,  not  in  regard  to  the  ac 
cused  or  either  of  them,  but  in  respect  to  the 
traitors  and  conspirators  not  on  trial,  who 
were  alleged  to  have  incited  this  crime.  Who 
is  there  to  say  that  the  American  people,  in 
time  of  armed  rebellion  and  civil  war,  have 
not  the  right  to  make  such  .an  examination  as 
secretly  as  they  may  deem  necessary,  either  in 
a  military  or  civil  court? 

I  have  said  this,  not  by  way  of  apology  for 
anything  the  Government  has  done  or  at 
tempted  to  do  in  the  progress  of  this  trial,  but 
to  expose  the  animus  of  the  argument,  and  to 


repel  the  accusation  against  my  country  sent 
out  to  the  world  by  the  counsel.  From  any 
thing  that  he  has  said,  I  have  yet  to  learn  that 
the  American  people  have  not  the  right  to 
make  their  inquiries  secretly,  touching  a  gen 
eral  conspiracy  in  aid  of  an  existing  rebellion, 
which  involves  their  nationality  and  the  peace 
and  security  of  all. 

The  gentleman  then  enters  into  a  learned 
argument  for  the  purpose  of  showing  that,  by  the 
Constitution,  the  people  of  the  United  States 
can  not,  in  war  or  in  peace,  subject  any  per 
son  to  trial  before  a  military  tribunal,  what 
ever  may  be  his  crime  or  oifense,  unless  such 
person  be  in  the  military  or  naval  service  of 
the  United  States.  The  conduct  of  this  argu 
ment  is  as  remarkable  as  its  assaults  upon  the 
Government  are  unwarranted,  and  its  insinu 
ations  about  the  revival  of  the  inquisition  and 
secret  trials  are  inexcusable.  The  Court  will 
notice  that  the  argument,  from  the  beginning 
almost  to  its  conclusion,  insists  that  no  per 
son  is  liable  to  be  tried  by  military  or  martial 
law  before  a  military  tribunal,  save  those  in 
the  land  and  naval  service  of  the  United 
States.  I  repeat,  the  conduct  of  this  argu 
ment  of  the  gentleman  is  remarkable.  As 
an  instance,  I  ask  the  attention,  not  only 
of  this  Court,  but  of  that  public  whom  he  has 
ventured  to  address  in  this  tone  and  temper, 
to  the  authority  of  the  distinguished  Chancel 
lor  Kent,  whose  great  name  the  counsel  has 
endeavored  to  press  into  his  service  in  sup 
port  of  his  general  proposition,  that  no  per 
son  save  those  in  the  military  or  naval  service 
of  the  United  States  is  liable  to  be  tried  for 
any  crime  whatever,  either  in  peace  or  in  war, 
before  a  military  tribunal. 

The  language  of  the  gentleman,  after  citing 
the  provision  of  the  Constitution,  "that  no 
person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime  unless  on  a  pre 
sentment  or  indictment  of  a  grand  jury,  ex 
cept  ih  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  ser 
vice  in  time  of  war  or  public  danger,"  is,  "  that 
this  exception  is  designed  to  leave  in  force, 
not  to  enlarge,  the  power  vested  in  Congress 
by  the  original  Constitution  to  make  rules  for 
the  government  and  regulation  of  the  land 
and  naval  forces;  that  the  land  or  naval 
forces  are  the  terms  used  in  both,  have  the 
same  meaning,  and  until  lately  have  been 
supposed  by  every  commentator  and  judge  to 
exclude  from  military  jurisdiction  offenses 
committed  by  citizens  not  belonging  to  such 
forces."  The  learned  gentleman  then  adds: 
"Kent,  in  a  note  to  his  1st  Commentaries,  341, 
states,  and  with  accuracy,  that  'military  and 
naval  crimes  and  offenses,  committed  while 
the  party  is  attached  to  and  under  the  imme 
diate  authority  of  the  army  and  navy  of  the 
United  States,  and  in  actual  service,  are  not 
cognizable  under  the  common-law  jurisdiction 
of  the  courts  of  the  United  States.'  "  I  ask 
this  Court  to  bear  in  mind  that  this  is  the 
only  passage  which  he  quotes  from  this  note 
of  Kent  in  his  argument,  and  that  no  man 
!  possessed  of  common  sense,  however  destitute 
!  he  may  be  of  the  exact  and  varied  learning  in 


ARGUMENT    OF   JOHN   A.    BINGIIAM. 


357 


the  law  to  which  the  gentleman  may  right 
fully  lay  claim,  can  fora  moment  entertain 
the  opinion  that  the  distinguished  chancellor 
of  New  York,  in  the  passage  just  cited,  inti 
mates  any  such  thing  as  the  counsel  asserts, 
that  the  Constitution  excludes  from  military 
jurisdiction  offenses  committed  by  citizens  not 
belonging  to  the  land  or  naval  forces. 

Who  can  fail  to  see  that  Chancellor  Kent, 
by  the  passage  cited,  only  decides  that  mili 
tary  and  naval  crimes  and  offenses  committed 
by  a  party  attached  to  and  under  the  immediate 
authority  of  the  army  and  navy  of  the  United 
States,  and  in  actual  service,  are  not  cognizable 
under  the  corumon-lawjurisdiction  of  the  courts 
of  the  United  States  ?  He  only  says  they  arc  not 
cognizable  under  its  common-law  jurisdic 
tion;  but  by  that  he  does  not  say  or  intimate, 
what  is  attempted  to  be  said  by  the  counsel 
for  him,  that  "  all  crimes  committed  by  citi 
zens  are  by  the  Constitution  excluded  from 
military  jurisdiction,"  and  that  the  perpetra 
tors  of  them  can  under  no  circumstances  be 
tried  before  military  tribunals.  Yet  the 
counsel  ventures  to  proceed,  starting  upon 
this  passage  quoted  from  Kent,  to  say  that, 
"  according  to  this  great  authority,  every  other 
class  of  persons  and  every  other  species  of 
offenses  are  within  the  jurisdiction  of  the 
civil  courts,  and  entitled  to  the  protection  of 
the  proceeding  by  presentment  or  indictment 
and  the  public  trial  in  such  a  court." 

Whatever  that  great  authority  may  have 
said  elsewhere,  it  is  very  doubtful  whether  any 
candid  man  in  America  will  be  able  to  come  to 
the  very  learned  and  astute  conclusion  that 
Chancellor  Kent  has  so  stated  in  the  note  or 
any  part  of  the  note  which  the  gentleman  has 
just  cited.  If  he  has  said  it  elsewhere,  it  is  for 
the  gentleman,  if  he  relies  upon  Kent  for  au 
thority,  to  produce  the  passage.  But  was  it 
fair  treatment  of  this  "great  authority" — was 
it  not  taking  an  unwarrantable  privilege  with 
the  distinguished  chancellor  and  his  great  work, 
the  enduring  monument  of  his  learning  and 
genius,  to  so  mutilate  the  note  referred  to,  as 
might  leave  the  gentleman  at  liberty  to  make 
his  deductions  and  assertions  under  cover  of 
the  great  name  of  the  New  York  chancellor,  to 
suit  the  emergency  of  his  case,  by  omitting  the 
following  passage,  which  occurs  in  the  same 
note,  and  absolutely  excludes  the  conclusion  so 
defiantly  put  forth  by  the  counsel  to  support 
his  argument?  In  that  note  Chancellor  Kent 


"  Military  law  is  a  system  of  regulations  for 
the  government  of  the  armies  in  the  service  of 
the  United  States,  authorized  by  the  act  of 
Congress  of  April  10,  1806,  known  as  the  Ar 
ticles  of  War,  and  naval  law  is  a  similar  sys 
tem  for  the  government  of  the  navy,  under 
the  act  of  Congress  of  April  23,  1800.  But 
martial  law  is  quite  a  distinct  thing,  and  is 
founded  upon  paramount  necessity,  and  pro 
claimed  by  a  military  chief." 

However  unsuccessful,  after  this  exposure, 
the  gentleman  appears  in  maintaining  his  mon 
strous  proposition,  that  the  American  people 
are  by  their-  own  Constitution  forbi-Hen  to  try 
the  aiders  and  abettors  of  armed  traitors  and 


rebellion  before  military  tribunals,  and  subject 
them,  according  to  the  laws  of  war  and  the 
usages  of  nations,  to  just  punishment  for  their 
great  crimes,  it  has  been  made  clear  from  what 
I  have  already  stated,  that  he  has  been  emi 
nently  successful  in  mutilating  this  beautiful 
production  of  that  great  mind;  which  act  of 
mutilation,  every  one  knows,  is  violative  alike 
of  the  laws  of  peace  and  war.  Even  in  war 
the  divine  creations  of  art  and  the  immortal 
productions  of  genius  and  learning  are  spared. 

In  the  same  spirit,  and  it  seems  to  me  with 
the  same  unfairness  as  that  just  noted,  the 
learned,,  gentleman  has  very  adroitly  pressed 
into  his  service,  by  an  extract  from  the  auto 
biography  of  the  war-worn  veteran  and  hero, 
General  Scott,  the  names  of  the  late  Secretary 
of  War,  Mr.  Marcy,  and  the  learned  ex-Attor 
ney-General,  Mr.  Gushing.  This  adroit  per 
formance  is  achieved  in  this  way:  after  stat 
ing  the  fact  that  General  Scott  in  Mexico  pro 
claimed  martial  law  for  the  trial  and  punish 
ment  by  military  tribunals  of  persons  guilty 
of  "  assassination,  murder  and  poisoning,"  the 
gentleman  proceeds  to  quote  from  the  Autobi 
ography,  'Uhat  this  order,  when  handed  to  the 
then  Secretary  of  War  (Mr.  Marcy)  for  his 
approval,  'a  startle  at  the  title  (martial  law 
order)  was  the  only  comment  he  then  or  ever 
made  on  the  subject,'  and  that  it  was  'soon  si 
lently  returned  as  too  explosive  for  safe  hand 
ling.'  '  A  little  later  (he  adds)  the  Attorney- 
General  (Mr.  Gushing)  called  and  asked  for  a 
copy,  and  the  law  officer  of  the  government, 
whose  business  it  is  to  speak  on  all  such  mat 
ters,  was  stricken  with  legal  dumbness.'  "  There 
upon  the  learned  gentleman  proceeds  to  say : 
"How  much  more  startled  and  more  paralyzed 
would  these  great  men  have  been  had  they  been 
consulted  on  such  a  commission  as  this !  A 
commission,  not.  to  sit  in  another  country,  and 
to  try  offenses  not  provided  for  in  any  law  of 
the  United  States,  civil  or  military,  then  in 
force,  but  in  their  own  country,  and  in  a  part 
of  it  where  there  are  laws  providing  for  their 
trial  and  punishment,  and  civil  courts  clothed 
with  ample  powers  for  both,  and  in  the  daily 
and  undisturbed  exercise  of  their  jurisdiction." 

I  think  I  may  safely  say,  without  stopping  to 
make  any  special  references,  that  the  official 
career  of  the  late  Secretary  of  War  (Mr.  Mar 
cy)  gave  no  indication  that  he  ever  doubted  or 
lenied  the  constitutional  power  of  the  Ameri 
can  people,  acting  through  their  duly  consti 
tuted  agents,  to  do  any  act  justified  by  the  laws 
of  war,  for  the  suppression  of  a  rebellion  or  to 
•epel  invasion.  Certainly  there  is  nothing  in 
this  extract  from  the  Autobiography  which  jus 
tifies  any  such  conclusion.  He  was  startled, 
we  are  told.  It  may  have  been  as  much  the 
admiration  he  had  for  the  boldness  and  wis 
dom  of  the  conqueror  of  Mexico  as  any  abhor 
rence  he  had  for  the  trial  and  punishment  of 
"assassins,  poisoners  and  murderers,"  accord 
ing  to  the  laws  and  usages  of  war. 

But  the  official  utterances  of  the  ex-Attorney- 
Genoral,  Gushing,  with  which  the  gentleman 
doubtless  was  familiar  when  he  prepared  this 
argument,  by  no  means  justify  the  attempt 
biere  made  to  quote  him  as  authority  against 


358 


THE    CONSPIRACY    T1UAL. 


the  proclamation  and  enforcement  of  martial 
law  in  time  of  rebellion  and  civil  war.  That 
distinguished  man.  not  second  in  legal  attain 
ments  to  any  who  have  held  that  position,  has 
left  an  official  opinion  of  record  touching  this 
subject.  Referring  to  what  is  said  by  Sir 
Mathew  Hale,  in  his  History  of  the  Common 
Law,  concerning  martial  law,  wherein  he  lim 
its  it,  as  the  gentleman  has  seemed  by  the 
whole  drift  of  his  argument  desirous  of  doing, 
and  says  that  it  is  "  not  in  truth  and  in  reality 
law,  but  something  indulged  rather  than  al 
lowed  as  a  law — the  necessity  of  government, 
order  and  discipline  in  an  army,''  Mr.  Qushing 
makes  this  just  criticism:  "This  proposition 
is  a  mere  composite  blunder,  a  total  misappre 
hension  of  the  matter.  It  confounds  martial 
law  and  law  military ;  it  ascribes  to  the  former 
the  uses  of  the  latter;  it  erroneously  assumes 
that  the  government  of  a  body  of  troops  is  a 
necessity  more  than  of  a  body  of  civilians  or 
citizens.  It  confounds  and  confuses  all  the 
relations  of  the  subject,  and  is  an  apt  illustra 
tion  of  the  incompleteness  of  the  notions  of  the 
common-law  jurists  of  England  in  regard  to 
matters  not  comprehended  in  that  limited 
branch  of  legal  science.  *  *  *  Military 
law,  it  is  now  perfectly  understood  in  England, 
is  a  branch  of  the  law  of  the  land,  applicable 
only  to  certain  acts  of  a  particular  class  of 
persons,  and  administered  by  special  tribunals  ; 
but  neither  in  that  nor  in  any  other  respect 
essentially  differing  as  to  foundation  in  consti 
tutional  reason  from  admiralty,  ecclesiastical 
or  indeed  chancery  and  common  law.  *  * 
It  is  the  system  of  rules  for  the  government  of 
the  army  and  navy  established  by  successive 
acts  of 'Parliament.  *  *  * 
Martial  law,  as  exercised  in  any  country  by 
the  commander  of  a  foreign  army,  is  an  ele 
ment  of  the  jus  belli. 

"It  is  incidental  to  the  state  of  solemn  war, 
and  appertains  to  the  law  of  nations.  *  * 
Thus,  while  the  armies  of  the  United  States  oc 
cupied  different  provinces  of  the  Mexican  re 
public,  the  respective  commanders  were  not 
limited  in  authority  by  any  local  law.  Thev 
allowed,  or  rather  required,  the  magistrates  of 
the  country,  municipal  or  judicial,  to  continue 
to  administer  the  laws  of  the  country  among 
their  countrymen ;  but  in  subjection,  always, 
to  the  military  power,  which  acted  summarily 
and  according  to  discretion,  when  the  bellige 
rent  interests  of  the  conqueror  required  it,  and 
which  exercised  jurisdiction,  either  summarily 
or  by  means  of  military  commissions  for  the 
protection  or  the  punishment  of  citizens  of  the 
United  States  in  Mexico.  Opinions  of  Attor 
neys-General,  vol.  viii,  366-369. 

Mr.  Gushing  says,  "  That,  it  would  seem, 
was  one  of  the  forms  of  martial  law;"  but  he 
adds,  that  such  an  example  of  martial  law  ad 
ministered  by  a  foreign  army  in  the  enemy's 
country  "does  not  enlighten  us  in  regard  to 
the  question  of  martial  law  in  one's  own  coun 
try,  and  as  administered  by  its  military  com 
manders.  That  is  a  case  which  the  law  of  na 
tions  does  not  reach.  Its  regulation  is  of  'the 
domestic  resort  of  the  organic  laws  of  the 
country  itself,  and  regarding  which,  as  it  hap 


pens,  there  is  no  definite  or  explicit  legislation 
in  the  United  States,  as  there  is  none  in  Eng 
land. 

"Accordingly,  in  England,  as  we  have  seen, 
Earl  Grey  assumes  that  when  martial  law  ex 
ists  it  has  no  legal  origin,  but  is  a  mere  fact  of 
necessity,  to  be  legalized  afterward  by  a  bill 
of  indemnity,  if  there  be  occasion.  I  am  not 
prepared  to  say  that,  under  existing  laws,  such 
may  not  also  be  the  case  in  the  United  States." 
JT)id.,  370. 

After  such  a  statement,  wherein  ex- Attor 
ney-General  Gushing  very  clearly  recognizes 
the  right  of  this  Government,  as  also  of  Eng 
land,  to  employ  martial  law  as  a  means  of  de 
fense  in  a  time  of  war,  whether  domestic  or 
foreign,  he  will  be  as  much  surprised  when  he 
reads  the  argument  of  the  learned  gentleman 
wherein  lie  is  described  as  being  struck  with 
legal  dumbness  at  the  mere  mention  of  proclaim 
ing  martial  law,  and  its  enforcement  by  the 
commander  of  our  army  in  Mexico,  as  the  lute 
Secretary  of  War  was  startled  with  even  the 
mention  of  its  title. 

Even  some  of  the  reasons  given,  and  certain 
ly  thp  power  exercised  by  the  veteran  hero  him 
self,  would  seem  to  be  in  direct  conflict  with 
the  propositions  of  the  learned  gentleman. 

The  Licutenant-General  says,  he  "excludes 
from  his  order  cases  already  cognizable  by 
court-martial,  and  limits  it  to  cases  not  pro 
vided  for  in  the  act  of  Gongress  establishing 
rules  and  articles  for  the  government  of  the 
armies  of  the  United  States."  Has  not  the 
gentleman  who  attempts  to  press  General 
Scott  into  his  service  argued  and  insisted  upon 
it,  that  the  commander  of  the  army  can  not  sub 
ject  the  soldiers  under  his  command  to  any 
control  or  punishment  whatever,  save  that 
which  is  provided  for  in  the  articles  ? 

It  will  not  do,  in  order  to  sustain  the  gen 
tleman's  hypothesis,  to  say  that  these  provi 
sions  of  the  Constitution,  by  which  he  attempts 
to  fetter  the  power  of  the  people  to  punish 
such  offenses  in  time  of  war  within  the  terri 
tory  of  the  United  States,  may  be  disregarded 
by  an  officer  of  the  United  States  in  command 
of  its  armies,  in  the  trial  and  punishment  of 
its  soldiers  in  a  foreign  war.  The  law  of  the 
United  States  for  the  government  of  its  own 
armies  follows  the  flag  upon  every  sea  and  in 
every  land. 

The  truth  is,  that  the  right  of  the  people  to 
proclaim  and  execute  martial  law  is  a  neces 
sary  incident  of  war,  and  this  was  the  right 
exercised,  and  rightfully  exercised,  by  Lieu- 
tenant-General  Scott  in  Mexico.  It  was  what 
Earl  Grey  has  justly  said  was  a  "fact  of  ne 
cessity,"  and  I  may  add,  an  act  as  clearly  au 
thorized  as  was  the  act  of  fighting  the  enemy 
when  they  appeared  before  him. 

In  making  this  exception,  the  Lieutenant- 
General  followed  the  rule  recognized  by  the 
American  authorities  on  military  law,  in 
which  it  is  declared  that  "many  crimes  com 
mitted  even  by  military  officers,  enlisted  men, 
or  camp  retainers,  can  not  be  tried  under  the 
rules  and  articles  of  war.  Military  Com 
missions  must  be  resorted  to  for  such  cases, 
and  these  commissions  should  be  ordered  by 


ARGUMENT    OF   JOHN    A.   BINGHAM. 


359 


the  same  authority,  be  constituted  in  a  simi 
lar  manner,  and  their  proceedings  be  conduc 
ted  according  to  the  same  general  rules  as 
general  courts-martial."  Bejiet,  15. 

There  remain  for  me  to  notice,  at  present, 
two  other  points  in  this  extraordinary  speech  : 
first,  that  martial  law  does  not  warrant  a 
military  commission  for  the  trial  of  military 
offenses — that  is,  offenses  committed  in  time 
of  war  in  the  interests  of  the  public  enemy, 
and  by  concert  arid  agreement  with  the  enemy  ; 
and  second,  that  martial  law  does  not  prevail 
in  the  United  States,  and  has  never  been  de 
clared  by  any  competent  authority. 

It  is  not  necessary,  as  the  gentleman  him 
self  has  declined  to  argue  the  first  point — 
whether  martial  law  authorizes  the  organi 
zation  of  military  commissions  by  order  of 
the  Commander-in-Chief  to  try  such  offenses, 
that  I  should  say  more  than  that  the  authority 
just  cited  by  me  shows  that  such  commissions 
are  authorized  under  martial  law,  and  are 
created  by  the  commander  for  the  trial  of  all 
such  offenses,  when  their  punishment  by  court- 
martial  is  not  provided  for  by  the  express 
Statute  law  of  the  country.  % 

The  second  point — that  martial  law  has  not 
been  declared  by  any  competent  authority,  is 
an  arraignment  of  the  late  murdered  Presi 
dent  of  the  United  States  for  his  proclamation 
of  September  24,  1862,  declaring  martial  law 
throughout  the  United  States;  and  of  which, 
in  Lawrence's  edition  of  Wheaton  on  Inter 
national  Law,  p.  522,  it  is  said :  "  Whatever 
may  be  the  inference  to  be  deduced,  either 
from  Constitutional  or  International  Law,  or 
from  the  usages  of  European  governments,  as 
to  the  legitimate  depository  of  the  power  of 
suspending  the  writ  of  habeas  corpus,  the  vir 
tual  abrogation  of  the  judiciary  in  cases 
affecting  individual  liberty,  and  the  establish 
ment  as  matter  of  fact  in  the  United  States, 
by  the  Executive  alone,  of  martial  law,  not 
merely  in  the  insurrectionary  districts,  or  in 
cases  of  military  occupancy,  but  throughout 
the  entire  Union,  and  not  temporarily,  but  as 
an  institution  as  permanent  as  the  insurrec 
tion  on  which  it  professes  to  be  based,  and 
capable  on  the  same  principle  of  being  revived 
in  all  cases  of  foreign  as  well  as  civil  war, 
are  placed  beyond  question  by  the  President's 
proclamation  of  September  24,  1862."  That 
proclamation  is  as  follows  : 

"  BY    THE    PRESIDENT    OF    THE    UNITED    STATES  .OF 
AMERICA A   PROCLAMATION. 

"  Whereas,  it  has  become  necessary  to  call 
into  service  not  only  volunteers,  but  also  por 
tions  of  the  militia  of  the  States,  by  a  draft, 
in  order  to  suppress  the  insurrection  existing 
in  the  United  States,  and  disloyal  persons  are 
not  adequately  restrained  by  the  ordinary  pro 
cesses  of  law  from  hindering  this  measure, 
and  from  giving  aid  and  comfort  in  various 
ways  to  the  insurrection  :  Now,  therefore,  be 
it  ordered,  that  during  the  existing  insurrec 
tion,  and  as  a  necessary  means  for  suppress 
ing  the  same,  all  rebels  and  insurgents,  their 
aiders  and  abettors,  within  the  United  States, 
and  all  persons  discouraging  volunteer  en 


listments,  resisting  militia  drafts,  or  guilty 
of  any  disloyal  practice,  affording  aid  and 
comfort  to  rebels,  against  the  authority  of  the 
United  States,  shall  be  subject  to  martial  law, 
and  liable  to  trial  and  punishment  by  courts- 
martial  or  military  commission. 

"Second.  That  the  writ  of  habeas  corpus  is 
suspended  in  respect  to  all  persons  arrested, 
or  who  are  now,  or  hereafter  during  the  rebel 
lion  shall  be,  imprisoned  in  any  fort,  camp, 
arsenal,  military  prison,  or  other  place  of  con 
finement,  by  any  military  authority,  or  by  the 
sentence  of  any  court-martial  or  military 
commission. 

"In  witness  whereof,  I  have  hereunto  set 
my  hand,  and  caused  the  seal  of  the  United 
States  to  be  affixed. 

"Done  at  the  city  of  Washington,  this  24th 
day  of  September,  A.  D.  1862,  and  of  the  inde 
pendence    of    the    United   States    the    eighty- 
seventh.  "ABRAHAM  LINCOLN. 
"By  the  President: 

"WILLIAM  H.  SEWARD,  Secretary  of  State." 

This  proclamation  is  duly  certified  from  the 
War  Department  to  be  in  full  force  and  not 
revoked,  and  is  evidence  of  record  in  this 
case  ;  and  but  a  few  days  since  a  proclamation 
of  the  President,  of  which  this  Court  will  take 
notice,  declares  that  the  same  remains  in  full 
force. 

It  has  been  said  by  another  of  the  counsel 
for  the  accused  (Mr.  Stone)  in  his  argument, 
that  admitting  its  validity,  the  proclamation 
ceases  to  have  effect  with  the  insurrection,  and 
is  terminated  by  it.  It  is  true  the  proclama 
tion  of  martial  law  only  continues  during  the 
insurrection ;  but  inasmuch  as  the  question 
of  the  existence  of  an  insurrection  is  a  polit 
ical  question,  the  decision  of  which  belongs 
exclusively  to  the  political  department  of  the 
Government,  that  department  alone  can  declare 
its  existence,  and  that  department  alone  can 
declare  its  termination,  and  by  the  action  of 
the  political  department  of  the  Government 
every  judicial  tribunal  in  the  land  is  concluded 
and  bound.  That  question  has  been  settled 
for  fifty  years  in  this  country  by  the  Supreme 
Court  of  the  United  States:  First,  in  the  case 
of  Brown  vs.  the  United  States,  8  Cranch ;  also 
in  the  prize  cases,  2  Black,  641.  Nothing  more, 
therefore,  need  be  said  upon  this  question  of 
an  existing  insurrection  than  this  :  The  political 
department  of  the  Government  has  heretofore 
proclaimed  an  insurrection;  that  department 
has  not  yet  declared  the  insurrection  ended, 
and  the  event  on  the  14th  of  April,  which 
robbed  the  people  of  their  chosen  Executive, 
and  clothed  this  land  in  mourning,  bore  sad 
but  overwhelming  witness  to  the  fact  that  the 
rebellion  is  not  ended.  The  fact  of  the  insur 
rection  is  not  an  open  question  to  be  tried  or 
settled  by  parol,  either  in  a  military  tribunal 
or  in  a  civil  court. 

The  declaration  of  the  learned  gentleman 
who  opened  the  defense  (Mr.  Johnson),  that 
martial  law  has  never  been  declared  by  any 
competent  authority,  as  I  have  already  said, 
arraigns  Mr.  Lincoln  for  a  usurpation  of  power. 
Does  the  gentleman  mean  to  say  that,  until 
Congress  authorizes  it,  the  President  can  not 


360 


THE    CONSPIRACY  TRIAL. 


proclaim  and  enforce  martial  law  in  the  sup 
pression  of  armed  and  organized  rebellion? 
Or  does  he  only  affirm  that  this  act  of  the  late 
President  is  a  usurpation? 

The  proclamation  of  martial  law  in  1862  a 
usurpation!  though  it  armed  the  people  in 
that  dark  hour  of  trial  with  the  means  of 
defense  against  traitorous  and  secret  ene 
mies  in  every  State  and  district  of  the  coun 
try;  though  by  its  use  some  of  the  guilty  were 
brought  to  swift  and  just  judgment,  and  others 
deterred  from  crime  or  driven  tonight;  though 
by  this  means  the  innocent  and  defenseless 
were  protected  ;  though  by  this  means  the  city 
of  the  gentleman's  residence  was  saved  from 
the  violence  and  pillage  of  the  mob  and  the 
torch  of  the  incendiary.  But,  says  the  gen 
tleman,  it  was  a  usurpation,  forbidden  by  the 
laws  of  the  land  ! 

The  same  was  said  of  the  proclamations  of 
blockade,  issued  April  19  and  27,  1861,  which 
declared  a  blockade  of  the  ports  of  the  in 
surgent  States,  and  that  all  vessels  violating 
the  same  were  subjects  of  capture,  and,  to 
gether  with  the  cargo,  to  be  condemned  as 
prize.  Inasmuch  as  Congress  had  not  then 
recognized  the  fact  of  civil  war,  these  procla 
mations  were  denounced  as  void.  The  Supreme 
Court  decided  otherwise,  and  affirmed  the 
power  of  the  Executive  thus  to  subject  prop 
erty  on  the  seas  to  seizure  and  condemnation. 
I  read  from  that  decision  : 

"  The  Constitution  confers  upon  the  Presi 
dent  the  whole  executive  power ;  he  is  bound 
to  take  care  that  the  laws  be  faithfully  exe 
cuted  ;  he  is  Commander-in-Chief  of  the  army 
and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  States  when  called  into 
the  actual  service  of  the  United  States.  *  * 
Whether  the  President,  in  fulfilling  his  duties 
as  Commander-in-Chief  in  suppressing  an  in 
surrection,  has  met  with  such  armed  hostile 
resistance,  and  a  civil  war  of  such  alarming 
proportions  as  will  compel  him  to  accord  to 
them  the  character  of  belligerents,  is  a  ques 
tion  to  be  decided  by  him,  and  this  Court  must 
be  governed  by  the  decisions  and  acts  of  the 
political  department  of  the  Government  to 
which  this  power  was  intrusted.  He  must  de 
termine  what  degree  of  force  the  crisis  de 
mands. 

"  The  proclamation  of  blockade  is  itself  of 
ficial  and  conclusive  evidence  to  the  Court  that 
a  state  of  war  existed  which  demanded  and 
authorized  a  recourse  to  such  a  measure  under 
the  circumstances  peculiar  to  the  case."  2 
Black,  670. 

It  has  been  solemnly  ruled  by  the  same  tribu 
nal,  in  an  earlier  case,  "that  the  power  is  con 
fided  to  the  Executive  of  the  Union  to  deter 
mine  when  it  is  necessary  to  call  out  the 
militia  of  the  States  to  repel  invasion,"  as 
follows:  "That  he  is  necessarily  constituted 
the  judge  of  the  existence  of  the  exigency  in 
the  first  instance,  and  is  bound  to  act  according 
to  his  belief  of  the  facts.  If  he  does  so  act, 
and  decides  to  call  forth  the  militia,  his  orders 
for  this  purpose  are  in  strict  conformity  with 
the  provisions  of  the  law;  and  it  would  seem 
to  follow  as  a  necessary  consequence,  that 


every  act  done  by  a  subordinate  officer,  in 
obedience  to  such  orders,  is  equally  notifiable. 
The  law  contemplates  that,  under  such  cir 
cumstances,  orders  shall  be  given  to  carry  the 
power  into  effect;  and  it  can  not,  therefore,  be 
a  correct  inference  that  any  other  person  has 
a  just  right  to  disobey  them.  The  law 
does  not  provide  for  any  appeal  from  the  judg 
ment  of  the  President,  or  for  any  right  in  sub 
ordinate  officers  to  review  his  decision,  and  in 
efifect  defeat  it.  Whenever  a  statute  gives  a  dis 
cretionary  power  to  any  person,  to  be  exercised 
by  him  upon  his  own  opinion  of  certain  facts, 
it  is  a  sound  rule  of  construction,  that  the 
statute  constitutes  him  the  sole  and  exclusive 
judge  of  the  existence  of  those  facts."  12 
Wheaton,  31. 

In  the  light  of  these  decisions,  it  must  be 
clear  to  every  mind  that  the  question  of  the 
existence  of  an  insurrection,  and  the  necessity 
of  calling  into  requisition  for  its  suppression 
both  the  militia  of  the  States,  and  the  army 
and  navy  of  the  United  Sta'es,  and  of  pro 
claiming  martial  law,  which  is  an  essential 
condition  of  war,  whether  foreign  or  do 
mestic,  must,  rest  with  the  officer  of  the  Gov 
ernment  who  is  charged  by  the  express  terms 
of  the  Constitution  with  the  performance  of 
this  great  duty  for  the  common  defense  and  the 
execution  of  the  laws  of  the  Union. 

But  it  is  further  insisted  by  the  gentleman 
in  this  argument,  that  Congress  has  not  author 
ized  the  establishment  of  military  commissions, 
which  are  essential  to  the  judicial  administra 
tion  of  martial  law,  and  the  punishment  of 
crimes  committed  during  the  existence  of  a  civil 
war,  and  especially,  that  such  commissions  are 
not  so  authorized  to  try  persons  other  than  those 
in  the  military  or  naval  service  of  the  United 
States,  or  in  the  militia  of  the  several  States, 
when  in  the  actual  service  of  the  United  Slates. 
The  gentleman's  argument  assuredly  destroys 
itself,  for  he  insists  that  the  Congress,  as  the 
legislative  department  of  the  government,  can 
pass  no  law  which,  either  in  peace  or  war,  can 
constitutionally  subject  any  citizen  not  in  the 
land  or  naval  forces,  to  trial  for  crime  before  a 
military  tribunal,  or  otherwise  than  by  a  jury 
in  the  civil  courts. 

Why  does  the  learned  gentleman  now  tell  us 
that  Congress  has  riot  authorized  this  to  be  done, 
after  declaring  just  as  stoutly  that  by  the  fifth 
and  sixth  amendments  to  the  Constitution  no 
such  military  tribunals  can  be  established  for 
the  trial  of  any  person  not  in  the  military  or 
naval  service  of  the  United  States,  or  in  the  mi 
litia,  when  in  actual  service,  for  the  commission 
of  any  crime  whatever  in  time  of  war  or  insurrec 
tion  ?  It  ought  to  have  occurred  to  the  gentleman 
when  commenting  upon  the  exception  in  the  fifth 
article  of  the  Constitution,  that  there  was  a  reason 
for  it  very  different  from  that  which  he  saw  fit 
to  assign,  and  that  reason,  manifestly  upon  the 
face  of  the  Constitution  itself,  was,  that  by  the 
eighth  section  of  the  first  article,  it  is  expressly 
provided  that  Congress  shall  have  power  to 
make  rules  for  the  government  of  the  land  and 
naval  forces,  and  to  provide  for  organizing, 
arming  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed 


ARGUMENT    OF    JOHN   A.    BINGHAM. 


361 


in  the  service  of  the  United  States,  and  that,  in-  j  of  successfully  asserting  their  authority,  preserv- 
nsmuch  as  military  discipline  and  order  are  as  [ing  their  nationality,  and  securing  protection  to 
essential  in  an  army  in  time  of  peace  as  in  time  j  the  lives  and  property  of  all,  and  especially  to 
of  war,  if  the  Constitution  would  leave  this  power  j  the  persons  of  those  to  whom  they  have  corn- 
to  Congress  in  peace,  it  must  make  the  excep- |mitted,  officially,  the  great  trust  of  maintaining 
tion,  so  that  rules  and  regulations  for  the  gov-  j  the  national  authority.  The  gentleman  says, 
eminent  of  the  army  and  navy  should  be  ope-  j  with  an  air  of  perfect  confidence,  that  he  denies 
rative  in  time  of  peace  as  well  as  in  time  of  war;  [the  jurisdiction  of  military  tribunals  for  the 
because  the  provisions  of  the  Constitution  give  !  trial  of  civilians  in  time  of  war,  because  nei- 
the  right  of  trial  by  jury  IN  TIME  OF  PEACE,  in  ther  the  Constitution  nor  laws  justify,  but  on 
all  criminal  prosecutions  by  indictment,  in  terms  the  contrary  repudiate  them,  and  that  all  the 
embracing  every  human  being  that  may  be  held  !  experience  of  the  past  is  against  it.  I  might 
to  answer  for  crime  in  the  United  States:  and  'content  myself  with  saying  that  the  practice  of 
therefore,  if  the  eighth  section  of  the  first  article  j  all  nations  is  against  the  gentleman's  conclu- 
was  to  remain  in  full  force  IN  TIME  OF  PEACE, 
the  exception  must  be  made;  and  accordingly, 


sion.     The  struggle  for  our  national  independ 
ence  was  aided  and  prosecuted  by  military  tri- 


the  exception  was  made.  But  by  the  argument  |  bunals  and  martial  law,  as  well  as  by  arms 
we  have  listened  to,  this  Court  is  told,  and  the  i  The  contest  for  American  nationality  began 
country  is  told,  that  IN  TIME  OF  WAR — a  war  I  with  the  establishment,  very  soon  after  the  fir- 
which  involves  in  its  dread  issue  the  lives  and  ing  of  the  first  gun  at  Lexington,  on  the  19th 
interests  of  us  all — the  guarantees  of  the  Con- j  day  of  April,  1775,  of  military  tribunals  and 
stitution  are  in  full  force  for  the  benefit  of  those  martial  law.  On  the  30th  of  June,  1775,  the 


who  conspire  with  the  enemy,  cre-ip  into  your 
camps,  murder  in  cold  blood,  in  the  interests  of 


Continental  Congres -5  provided  that"  whosoever, 
belonging  to  the  continental  army,  shall  be  convicted 


the   invader   or  insurgent,  the    Commander-in- j  of  holding  correspondence  with,  or  giving  intel- 


Chief  of  your  army,  and  secure  to  him  the  slow 
and  weak  provisions  of  the  civil  law,  while  the 
soldier,  who  may,  when  overcome  by  the  de 
mands  of  exhausted  nature,  which  can  not  be 


ligence  to  the  enemy,  either  indirectly  or  di 
rectly,  shall  suffer  such  punishment  as  by  a 
court-martial  shall  be  ordered."  This  was  found 
not  sufficient,  inasmuch  as  it  did  not  reach  those 


resisted,  have  slept  at  his  post,  is  subject  to  be  \civilians  who,  like  certain  civilians  of  our  day, 
tried  upon  the  spot  by  a  military  tribunal  and  shot,  i  claim  the  protection  of  the  civil  law  in  time  of 
The  argument  amounts  to  this:  that  as  military  war  against  military  arrests  and  military  trials 
courts  and  military  trials  of  civilians  in  time  of  i  for  military  crimes.  Therefore,  the  same  Con- 
war  are  a  usurpation  and  tyranny,  and  as  soldiers  jgress,  on  the  7th  of  November,  1775,  amended 
are  liable  to  such  arrests  and  trial,  Sergeant  Cor-  this  provision  by  striking  out  the  words  "  be- 


bett,  who  shot  Booth,  should  be  tried  and  executed 
by  sentence  of  a  military  court;  while  Booth's  co- 
conspirators  and  aiders  should  be  saved  from 
any  such  indignity  as  a  military  trial  !  I  con 
fess  that  I  am  too  dull  to  comprehend  the  logic, 
the  reason,  or  the  sense  of  such  a  conclusion  !  If 
there  is  any  one  entitled  to  this  privilege  of  a 
civil  trial,  at  a  I'emote  period,  and  by  a  jury  of 
the  District,  IN  TIME  OF  CIVIL  WAR,  when  the 
foundations  of  the  Republic  are  rocking  beneath 
the  earthquake  tread  of  armed  rebellion,  that 
man  is  the  defender  of  the  republic.  It  will 
never  do  to  say,  as  has  been  said  in  this  argu 
ment,  that  the  soldier  is  not  liable  to  be  tried  in 
time  of  war  by  a  military  tribunal  for  any  other 
offense  than  those  prescribed  in  the  rules  and 
articles  of  war.  To  my  mind,  nothing  can  be 
clearer  than  that  citizen  and  soldier  alike,  in 
time  of  civil  or  foreign  war,  after  a  proclamation 


longing  to  the  continental  army,"  and  adopting 
the  article  as  follows : 

"All  persons  convicted  of  holding  a  treacher 
ous  correspondence  with,  or  giving  intelligence 
to  the  enemy,  shall  suffer  death,  or  such  other 
punishment  as  a  general  court-martial  shall 
think  proper." 

Arid  on  the  17th  of  June,  1776,  the  Congress 
added  an  additional  rule: 

"That  all  persons,  not  members  of,  nor  owing 
allegiance  to,  any  of  the  United  States  of  Amer 
ica,  who  should  be  found  lurking  as  spies  in  or 
about  the  fortifications  or  encampments  of  the 
armies  of  the  United  States,  or  any  of  them, 
shall  suffer  death,  according  to  the  law  and 
usage  of  nations,  by  the  sentence  of  a  court- 
martial,  or  such  other  punishment  as  a  court- 
martial  shall  direct." 
Comprehensive  as  was  this  legislation,  embrac- 


of  martial  law,  are  triable  by  military  tribunals  j  ing,  as  it  did,  soldiers,  citizens  and  aliens,  sub- 


for  all  offenses  of  which  they  may  be  guilty,  in 
the  interests  of,  or  in  concert  with,  the  enemy. 
These  provisions,  therefore,  of  your  Constitu- 


jecting  all  alike  to  trial  for  their  military 
crimes  by  the  military  tribunals  of  justice,  ac 
cording  to  the  law  and  the  usage  of  nations, 


tion  for  indictment  and  trial  by  jury  in  civil !  it  was  found  to  be  insufficient  to  meet  that 
courts  of  all  crimes  are,  as  I  shall  hereafter  show,  j  most  dangerous  of  all  crimes,  committed  in  the 
silent  and  inoperative  in  time  of  war  when  the  '  interests  of  the  enemy,  by  citizens,  in  time  of 


public  safety  requires  it. 

The  argument  to  which  I  have  thus  been  re- 


war,  the   crime  of  conspiring  together  to  assas 
sinate,  or  seize  and  carry  away,  the  soldiei-s  and 


plying,  as  the  Court  will  not  fail  to  perceive,  nor  '  citizens    who   were   loyal   to  the  cause  of    the 


that  public  to  which  the  argument  is  addressed, 
is  a  labored  attempt  to  establish  the  proposition, 


country.     Therefore,  on   the  27th  of  February, 


1778,  the  Congress  adopted   the  following  reso- 
that,  by  the  Constitution  of  the  United   States,  jlution: 
the  American  people  can  not,  even  in  a  civil  war  j      "Resolved,  That  whatever  inhabitants  of  these 
the  greatest  the  world   has   ever  seen,  employ   States  shall  kill,  or  seize,  or  take,  any  loyal  cit- 
martial  law  and  military  tribunals  as  a  means  ,  izeu   or  citizens  thereof,  and   convey  him,  her. 


362 


THE    CONSPIRACY   TRIAL. 


or  them,  to  any  place  within  the  power  of  the 
enemy,  or  shall  ENTER  INTO  ANY  COMBINATION 


federate   Congress   I  know  was  challenged,  but 
only   by   men   charged  with  the  guilt  of  their 


for  such  purpose,  or  attempt  to  carry  the  same  country's  blood, 
into  execution,  or  hath  assisted  or  shall  assist  j  Washington,  the  peerless,  the  stainless,  and 
therein;  or  shall,  by  giving  intelligence,  acting  the  just,  with  whom  God  walked  through  the 
as  a  guide,  or,  in  any  manner  whatever,  aid  night  of  that  great  trial,  enforced  this  just  and 
the  enemy  in  the  perpetration  thereof,  he  shall  wise  enactment  upon  all  occasions  On  the 
suffer  death,  by  the  judgment  of  a  court-mar-  I  30th  of  September,  1780,  Joshua  H.  Smith,  by 
tial,  as  a  traitor,  assassin,  or  spy,  if  the  offense  j  the  order  of  General  Washington,  was  put  upon 
be  committed  within  seventy  miles  of  the  head-  I  his  trial  before  a  court-martial,  convened  in  the 
quarters  of  the  grand  or  other  armies  of  these  {  State  of  New  York,  on  the  charge  of  there  aid- 


States,  where  a  general  officer  commands." 
Journals  of  Congress,  vol.  II,  pp.  459,  460. 

So  stood  the  law  until  the  adoption  of  the 
Constitution  of  the  United  States.  Every  well- 
informed  man  knows  that,  at  the  time  of  the 
passage  of  these  acts,  the  courts  of  justice,  hav 
ing  cognizance  of  all  crimes  against  persons, 
were  open,  in  many  of  the  States,  and  that,  by 
their  several  constitutions  and  charters,  which 
were  then  the  supreme  law  for  the  punishment 
of  crimes  committed  within  their  respective  ter 
ritorial  limits,  no  man  was  liable  to  conviction 
but  by  the  verdict  of  a  jury.  Take,  for  example, 
the  provisions  of  the  Constitution  of  North  Car 
olina,  adopted  on  the  10th  of  November,  1776, 
and  in  full  force  at  the  time  of  the  passage  of 
the  last  resolution  by  Congress  above  cited, 
which  provisions  are  as  follows  : 

"That  no  freeman  shall  be  put  to  answer  any 
criminal  charge  but  by  indictment,  presentment 
or  impeachment." 

"  That  no  freeman  shall  be  convicted  of  any 
crime  but  by  the  unanimous  verdict  of  a  jury 
of  good  and  lawful  men,  in  open  court,  as  here 
tofore  used." 

This  WAS  the  law  in  1778  in  all  the  States, 
and  the  provision  for  a  trial  by  jury,  every  one 
knows,  meant  a  jury  of  twelve  men,  impanneled 
and  qualified  to  try  the  issue  in  a  civil  court. 
The  conclusion  is  not  to  be  avoided  that  these 


ing  and  assisting  Benedict  Arnold,  in  a  combi 
nation  with  the  enemy,  to  take,  kill  and  seize 
such  loyal  citizens  or  soldiers  of  the  United 


States 


were    in    garrison    at    Wrest    Point. 


Smith  objected  to  the  jurisdiction,  averring  that 
he  was  a  private  citizen,  not  in  the  military  or 
naval  service,  and,  therefore,  was  only  amena 
ble  to  the  civil  authority  of  the  State,  whose 
constitution  had  guaranteed  the  right  of  trial 
by  jury  to  all  persons  held  to  answer  for  crime. 
Chandler's  Criminal  Trials,  vol.  II,  p.  187.  The 
Constitution  of  New  York,  then  in  force,  had  so 
provided;  but,  notwithstanding  that,  the  Court, 
overruled  the  plea,  held  him  to  answer,  and 
tried  him.  I  repeat  that,  when  Smith  was  thus 
tried  by  court-martial,  the  Constitution  of  New 
York  as  fully  guaranteed  trial  by  jury  in  the 
civil  courts,  to  all  civilians  charged  and  held 
to  answer  for  crimes  within  the  limits  of  that 
State,  as  does  the  Constitution  of  the  United 
States  guarantee  such  trial  within  the  limits  of 
the  District  of  Columbia.  By  the  second  of  the 
Articles  of  Confederation  each  State  retained 
"its  sovereignty,"  and  every  power,  jurisdic 
tion  and  right  not  expressly  delegated  to  the 
United  States  in  Congress  assembled.  By  those 
Articles  there  was  no  express  delegation  of  ju 
dicial  power;  therefore,  the  States  retained  it 


If    the    military    courts,    constituted    by    the 


enactments  of  the   Congress,  under  the  confed-  commander  of  the  army  of  the  United  States 


oration,  set  aside  the  trial  by  jury  within  the 
several  States,  and  expressly  provided  for  the 
trial,  by  court-martial,  of  "  any  of  the  inhab 
itants"  who,  during  the  revolution,  might,  con 
trary  to  the  provisions  of  said  law,  and  in  aid 
of  the  public  enemy,  give  them  intelligence,  or 
kill  any  loyal  citizens  of  the  United  States,  or 
enter  into  any  combination  to  kill  or  carry 
them  away.  How  comes  it,  if  the  argument  of 
the  counsel  be  true,  that  this  enactment  was 


passed  by  the  Congress  of  1778,  when  the  con-   and  laws  of  such  States,  how  can  any  man  con 


stitutions  of  the  several  States,  at  that  day,  as 
fully  guaranteed  trial  by  jury  to  every  person 
held  to  answer  for  a  crime,  as  does  the  Consti 
tution  of  the  United  States  at  this  hour  ?  Not 
withstanding  this  fact,  I  have  yet  to  learn  that 
any  loyal  man  ever  challenged,  during  all  the 


under  the  Confederation,  who  was  appointed 
only  by  a  resolution  of  the  Congress,  without 
any  express  grant  of  power  to  authorize  it — 
his  office  not  being  created  by  the  act  of  the 
people  in  their  fundamental  law — had  jurisdic 
tion  in  every  State  to  try  and  put  to  death 
"any  inhabitant  "  thereof  who  should  kill  any 
loyal  citizen,  or  enter  into  "any  combination ;! 
for  any  such  purpose  therein  in  time  of  war,  not 
withstanding  the  provisions  of  the  Constitution 


ceive  that,  under  the  Constitution  of  tho 
United  States,  which  is  the  Supreme  law  over 
every  State,  anything  in  the  Constitution  and 
laws  of  such  State  to  the  contrary  not 
withstanding,  and  the  supreme  law  over  every 
Territory  of  the  Republic  as  well,  the  Corn- 


period  of  our  conflict  for  independence  and  na-   mander-in-Chief  of    the   army   of    the    United 


tionality,  the  validity  of  that  law  for  the  trial, 
for  military  offenses,  by  military  tribunals,  of 
all  offenders,  as  the  law,  not  of  peace,  but  of 
war,  and  absolutely  essential  to  the  prosecution 
of  war.  I  may  be  pardoned  for  saying  that  it 
is  the  accepted  common  law  of  nations  that 
martial  law  is,  at  all  times,  and  everywhere, 
essential  to  the  successful  prosecution  of  war, 


States,  who  is  made  such  by  the  Constitution, 
and,  by  its  supreme  authority,  clothed  with  the 
power  and  charged  with  the  duty  of  directing 
and  controlling  the  whole  military  power  of 
the  United  States,  in  time  of  rebellion  or  in 
vasion,  has  not  that  authority  ? 

I  need  not  remind  the  Court  that  one  of  the 


marked   differences 


whether  it  be  a  civil  or  a  foreign  war.     The  va-   Confederation    and 


between  the    Articles    of 
the    Constitution    of    the 


lidity  of  these  acts  of  the  Continental  and  Con- j  United   States  was,  that,  under  the  Confedera- 


ARGUMENT   OF   JOHN   A.    BINQHAM. 


363 


tion,  the  Congress  was  the  sole  depository  of 
all  federal  power.  The  Congress  of  the  Con 
federation,  said  Madison,  held  "  the  command 
of  the  army."  Fed.,  No.  88.  Has  the  Con 
stitution,  which  was  ordained  by  the  people  the 
better  u  to  insure  domestic  tranquillity  and  to 
provide  for  the  common  defense,"  so  fettered 
the  great  power  of  self-defense  against  armed 
insurrection  or  invasion  that  martial  law,  so 
essential  in  war,  is  forbidden  by  that  great  in 
strument?  I  will  yield  to  no  man  in  rever 
ence  for  or  obedience  to  the  Constitution  of  my 
country,  esteeming  it,  as  I  do,  a  new  evangel 
to  the  nations,  embodying  the  democracy  of  the 
New  Testament,  the  absolute  equality  of  all 
men  before  the  law,  in  respect  of  those  rights 
of  human  nature  which  are  the  gift  of  God, 
and,  therefore,  as  universal  as  the  material 
structure  of  man.  Can  it  be  that  this  Consti 
tution  of  ours,  so  divine  in  its  spirit  of  justice, 
so  beneficent  in  its  results,  so  full  of  wisdom, 
and  goodness,  and  truth,  under  which  we  be 
came  one  people,  a  great  and-  powerful  nation 
ality,  has,  in  terms  or  by  replication,  denied 
to  this  people  the  power  to  crush  armed  rebel 
lion  by  war,  and  to  arrest  and  punish,  during 
the  existence  of  such  rebellion,  according  to 
the  laws  of  war  and  the  usages  of  nations,  se 
cret  conspirators  who  aid  and  abet  the  public 
enemy  ? 

Here  is  a  conspiracy,  organized  and  prose 
cuted  by  ai'med  traitors  and  hired  assassins, 
receiving  the  moral  support  of  thousands  in 
every  State  and  district,  who  pronounced  the 
war  for  the  Union  a  failure,  and  your  now 
murdered  but  immortal  Commandei'-in-Chief  a 
tyrant;  the  object  of  which  conspiracy,  as  the 
testimony  shows,  was  to  aid  the  tottering  rebel 
lion  which  struck  at  the  nation's  life.  It  is  in 
evidence  that  Davis,  Thompson,  and  others, 
chiefs  in  this  rebellion,  in  aid  of  the  same, 
agreed  and  conspired  with  others  to  poison  the 
fountains  of  water  which  supply  your  commer 
cial  metropolis,  and  thereby  murder  its  inhab 
itants;  to  secretly  deposit  in  the  habitations  of 
the  people  and  in  the  ships  in  your  harbors  in 
flammable  materials,  and  thereby  destroy  them 
by  fire;  to  murder  by  the  slow  and  consuming 
torture  of  famine  your  soldiers,  captives  in  their 
hands ;  to  import  pestilence  in  infected  clothes 
to  be  distributed  in  your  capital  and  camps, 
and  thereby  murder  the  surviving  heroes  and 
defenders  of  the  republic,  who,  standing  by  the 
holy  graves  of  your  unreturning  brave,  proudly 
and  defiantly  challenge  to  honorable  combat  and 
open  battle  all  public  enemies,  that  their  coun 
try  may  live  ;  and,  finally,  to  crown  this  horrid 
catalogue  of  crime,  this  sum  of  all  human 
atrocities,  conspired,  as  charged  upon  your 
record,  with  the  accused  arid  John  Wilkes  Booth 
and  John  H.  Surratt,  to  kill  and  murder  in 
your  capital  the  executive  officers  of  your  Gov 
ernment  and  the  commander  of  your  armies. 
When  this  conspiracy,  entered  into  by  these 
traitors,  is  revealed  by  its  attempted  execution, 
and  the  foul  and  brutal  murder  of  your  Presi 
dent  in  the  capital,  you  are  told  that  it  is  uncon 
stitutional,  in  order  to  arrest  the  further  execu 
tion  of  the  conspiracy,  to  interpose  the  military 
power  of  this  government  for  the  arrest,  without 


civil  process,  of  any  of  the  parties  thereto,  and 
for  their  trial  by  a  military  tribunal  of  justice. 
If  any  such  rule  had  obtained  during  our  strug 
gle  for  independence,  we  never  would  have  been 
a  nation.  If  any  such  rule  had  been  adopted 
and  acted  upon  now,  during  the  fierce  struggle 
of  the  past  four  years,  no  man  can  say  that  our 
nationality  would  have  thus  long  survived. 

The  whole  people  of  the  United  States,  by 
their  Constitution,  have  created  the  office  of 
President  of  the  United  States  and  Commander- 
in-Chief  of  the  army  and  navy,  and  have  vested, 
by  the  terms  of  that  Constitution,  in  the  person 
of  the  President  and  Commander-in-Chief,  the 
power  to  enforce  the  execution  of  the  laws,  and 
preserve,  protect,  and  defend  the  Constitution. 

The  question  may  well  be  asked:  If,  as  Com 
mander-in-Chief,  the  President  may  not,  in  time 
of  insurrection  or  war,  proclaim  and  execute 
martial  law,  according  to  the  usages  of  nations, 
how  he  can  successfully  perform  the  duties  of 
his  office — execute  the  laws,  preserve  the  Con 
stitution,  suppress  insurrection,  and  repel  inva 
sion  ? 

Martial  law  and  military  tribunals  are  as  es 
sential  to  the  successful  prosecution  of  war  as 
are  men,  and  arms,  and  munitions.  The  Consti 
tution  of  the  United  States  has  vested  the  power 
to  declare  war  and  raise  armies  and  navies  ex 
clusively  in  the  Congress,  and  the  power  to 
prosecute  the  war  and  command  the  army  and 
navy  exclusively  in  the  President  of  the  United 
States.  As,  under  the  Confederation,  the  com 
mander  of  the  army,  appointed  only  by  the 
Congress,  was  by  the  resolution  of  that  Congress 
empowered  to  act  as  he  might  think  proper  for 
the  good  and  welfare  of  the  service,  subject  only 
to  such  restraints  or  orders  as  the  Congress 
might  give;  so,  under  the  Constitution,  the 
President  is,  by  the  people  who  ordained  that 
Constitution  and  declared  him  Commander-in- 
Chief  of  the  army  and  navy,  vested  with  full 
power  to  direct  and  control  the  army  and  navy 
of  the  United  States,  and  employ  all  the  forces 
necessary  to  preserve,  protect,  and  defend  the 
Constitution  and  execute  the  laws,  as  enjoined 
by  his  oath  and  the  very  letter  of  the  Consti 
tution,  subject  to  no  restriction  or  direction 
save  such  as  Congress  may  from  time  to  time 
prescribe. 

That  these  powers  for  the  common  defense, 
intrusted  by  the  Constitution  exclusively  to 
the  Congress  and  the  President,  are,  in  time 
of  civil  war  or  foreign  invasion,  to  be  exer 
cised  without  limitation  or  restraint,  to  the 
extent  of  the  public  necessity,  and  without 
any  intervention  of  the  Federal  judiciary  or 
of  State  constitutions  or  State  laws,  are  facts 
in  our  history  not  open  to  question. 

The  position  is  not  to  be  answered  by 
saying  you  make  the  American  Congress 
thereby  omnipotent,  and  clothe  the  American 
Executive  with  the  asserted  attribute  of  hered 
itary  monarchy — the  king  can  do  no  wrong. 
Let  the  position  be  fairly  stated — that  the  Con 
gress  and  President,  in  war  as  in  peace,  are 
but  the  agents  of  the  whole  people,  and  that 
this  unlimited  power  for  the  common  defense 
against  armed  rebellion  or  foreign  invasion  ia 
but  the  power  of  the  people  intrusted  exclu- 


364 


IHE    CONSPIRACY   TRIAL. 


sively  to  the  legislative  and  executive  depart 
ments  as  their  agents,  for  any  and  every  abuse 
of  which  these  agents  are  directly  responsible 
to  the  people — and  the  demagogue  cry  of  an 
omnipotent  Congress,  and  an  executive  in 
vested  with  royal  prerogatives,  vanishes  like 
the  baseless  fabric  of  a  vision.  If  the  Con 
gress  corruptly,  or  oppressively,  or  wantonly 
abuse  this  great  trust,  the  people,  by  the  irre 
sistible  power  of  the  ballot,  hurl  them  from 
place.  If  the  President  so  abuse  the  trust,  the 
people  by  their  Congress  withhold  supplies,  or 
by  impeachment  transfer  the  trust  to  better 
hands,  strip  him  of  the  franchises  of  citizen 
ship  and  of  office,  and  declare  him  forever  dis 
qualified  to  hold  any  position  of  honor,  trust, 
or  power  under  the  government  of  his 
country. 

I  can  understand  very  well  why  men  should 
tremble  at  the  exercise  of  this  great  power  by 
a  monarch  whose  person,  by  the  Constitution 
of  his  realm,  is  inviolable,  but  I  can  not  con 
ceive  how  an  American  citizen,  who  has  faith 
in  the  capacity  of  the  whole  people  to  govern 
themselves,  should  give  himself  any  concern 
on  the  subject.  Mr.  Hallarn,  the  distinguished 
author  of  the  Constitutional  History  of  England, 
has  said: 

"  Kings  love  to  display  the  divinity  with 
which  their  flatterers  invest  them,  in  nothing 
so  much  as  in  the  instantaneous  execution  of 
their  will,  and  to  stand  revealed,  as  it  were,  in 
the  storm  and  thunderbolt  when  their  power 
breaks  through  the  operation  of  secondary 
causes  and  awes  a  prostrate  nation  without 
the  intervention  of  law." 

How  just  are  such  words  when  applied  to  an 
irresponsible  monarch  1  How  absurd,  when 
applied  to  a  whole  people,  acting  through 
their  duly  appointed  agents,  whose  will,  thus 
declared,  is  the  supreme  law,  to  awe  into  sub 
mission  and  peace  and  obedience,  not  a  pros 
trate  nation,  but  a  prostrate  rebellion  !  The 
same  great  author  utters  the  fact  which  all 
history  attests,  when  he  says : 

"  It  has  been  usual  for  all  governments  du 
ring  actual  rebellion,  to  proclaim  martial  law 
forthe  suspensionof  civil  jurisdiction;  and  this 
anomaly,  I  must  admit,"  he  adds,  "is  very  far 
from  being  less  indispensable  at  such  unhap 
py  seasons  where  the  ordinary  mode  of  trial 
is  by  jury,  than  where  the  right  of  decision 
resides  in  the  court."  Const.  Hist,,  vol.  I,  ch. 
5,  p.  326. 

That  the  power  to  proclaim  martial  law  and 
fully  or  partially  suspend  the  civil  jurisdic 
tion,  Federal  and  State,  in  time  of  rebellion  or 
civil  war,  and  punish  by  military  tribunals  all 
offenses  committed  in  aid  of  the  public  enemy, 
is  conferred  upon  Congress  and  the  Executive, 
necessarily  results  from  the  unlimited  grants 
of  power  for  the  common  defense  to  which  I 
have  already  briefly  referred.  I  may  be  par 
doned  for  saying  that  this  position  is  not  as 
sumed  by  me  for  the  purposes  of  this  occasion, 
but  that  early  in  the  first  year  of  this  great 
struggle  for  our  national  life  I  proclaimed  it 
as  a  representative  of  the  people,  under  the  ob 
ligation  of  my  oath,  and,  as  I  then  believed, 
and  still  believe,  upon  the  authority  of  the 


great  men  who  formed  and  fashioned  the  wise 
and  majestic  fabric  of  American  government. 

Some  of  the  citations  which  I  deemed  it  my 
duty  at  that  time  to  make,  and  some  of  which 
I  now  re-produce,  have,  I  am  pleased  to  say, 
found  a  wider  circulation  in  books  that  have 
since  been  published  by  others. 

When  the  Constitution  was  on  trial  for  its 
deliverance  before  the  people  of  the  several 
States,  its  ratification  was  opposed  on  the 
ground  that  it  conferred  upon  Congress  and 
the  Executive  unlimited  power  for  the  common 
defense.  To  all  such  objectors — and  they  were 
numerous  in  evei-y  State — that  great  man,  Al 
exander  Hamilton,  whose  words  will  live  as 
long  as  our  language  lives,  speaking  to  the  lis 
tening  people  of  all  the  States,  and  urging 
them  not  to  reject  that  matchless  instrument 
which  bore  the  name  of  Washington,  said  : 

"  The  authorities  essential  to  the  care  of  the 
common  defense  are  these  :  To  raise  armies;  to 
build  and  equip  fleets;  to  prescribe  rules  for 
ihe  govei  ament  of  both  ;  to  direct  their  opera- 
lions  ;  to  provide  for  their  suppoi  t.  These  pow 
ers  ought  to  exist  WITHOUT  LIMITATION  ;  because 
it  is  impossible  to  foresee  or  define  the  extent 
and  variety  of  national  exigencies,  and  the 
correspondent  extent  and  variety  of  the  means 
which  may  be  necessary  to  satisfy  them. 

"  The  circumstances  that  endanger  the  safety 
of  nations  are  infinite ;  and  for  this  reason  no 
constitutional  shackles  c^n  wisely  be  imposed 
on  the  power  to  which  the  care  of  it  is  com 
mitted.  *  *  *  This  power  ought 
to  be  xinder  the  direction  of  the  same  councils 
which  are  appointed  to  preside  over  the  com 
mon  defense.  It  must  be 
admitted,  as  a  necessary  consequence,  that 
there  can  be  no  limitation  of  that  authority 
which  is  to  provide  for  the  defense  and  pro 
tection  of  the  community,  in  any  manner  essen 
tial  to  its  efficacy  ;  that  is,  any  matter  essen 
tial  to  the  formation,  direction  or  support  of 
the  national  forces.'' 

He  adds  the  further  remark : 

"  This  is  one  of  those  truths  which,  to  a  cor 
rect  and  unprejudiced  mind,  carries  its  own 
evidence  along  with  it;  and  may  be  obscured, 
but  can  not  be  made  plainer  by  argument  or 
reasoning.  It  rests  upon  axioms  as  simple  as 
they  are  universal — the  means  ought  to  be  pro 
portioned  to  the  end;  the  persons  from  whose 
agency  the  attainment  of  any  end  is  expected, 
ought  to  possess  the  means  by  which  it  is  to 
be  attained."  Federalist,  No.  23. 

In  the  same  great  contest  for  the  adoption  of 
the  Constitution,  Madison,  sometimes  called  the 
Father  of  the  Constitution,  said : 

"Is  the  power  of  declaring  war  necessary? 
No  man  will  answer  this  question  in  the  nega 
tive.  *  *  *  Is  the  power  of  rais 
ing  armies  and  equipping  fleets  necessary  ? 
*  *  #  it  is  involved  in  the  power  of 
self-defense.  With  what 

color  of  propriety  could  the  force  necessary 
for  defense  be  limited  by  those  who  can  not 
limit  the  force  of  offense  ?  *  *  The 

means  of  security  can  only  be  regulated  by  the 
means  and  the  danger  of  attack.  *  *  * 
It  is  in  vain  to  oppose  constitutional  barriers 


ARGUMENT    OF   JOHN   A.   BINGIIAM. 


365 


to  the  impulse  of  self-preservation.  It  is  worse 
than  in  vain,  because  it  plants  in  the  Consti 
tution  itself  necessary  usurpations  of  power.' 
Federalist,  No.  41. 

With  this  construction,  proclaimed  both  by 
the  advocates  and  opponents  of  its  ratifica 
tion,  the  Constitution  of  the  United  States  was 
accepted  and  adopted,  and  that  construction 
has  been  followed  and  acted  upon,  by  every 
department  of  the  Government  to  this  day. 

It  was  as  well  understood  then  in  theory  as 
it  has  since  been  illustrated  in  practice,  that 
the  judicial  power,  both  Federal  and  State,  had 
no  voice  and  could  exercise  no  authority  in  the 
conduct  and  prosecution  of  a  war,  except  in 


the  political  department  of 
The  Constitution    contains 


subordination    to 

the    Government. 

the  significant  provision,  "The  privilege  of  the 

writ  of  habeas  corpus  shall  not  be   suspended, 

unless  when  in  cases  of  rebellion  or  invasion 

the  public  safety  may  require  it." 

Whftt  was  this  but  a  declaration,  that  in 
time  of  rebellion,  or  invasion,  the  public  safety 
is  the  highest  law  ? — that  so  far  as  necessary 
the  civil  courts  (of  which  the  Commander-in- 
Chief,  under  the  direction  of  Congress)  must 
be  silent,  and  the  rights  of  each  citizen,  as 
secured  in  time  of  peace,  must  yield  to  the 
wants,  interests  and  necessities  of  the  nation? 
Yet  we  have  been  gravely  told  by  the  gentle 
man,  in  his  argument,  that  the  maxim,  salus 
populi  suprema  est  lex,  is  but  fit  for  a  tyrant's 
use.  Those  grand  men,  whom  God  taught  to 
build  the  fabric  of  empire,  thought  otherwise, 
when  they  put  that  maxim  into  the  Constitu 
tion  of  their  country.  It  is  very  clear  that  the 
Constitution  recognizes  the  great  principle 
which  underlies  the  structure  of  society  and 
of  all  civil  government;  that  no  man  lives  for 
himself  alone,  but  each  for  all ;  that  if  need  be 
some  must  die,  that  the  State  may  live,  because 
at  best  the  individual  is  but  for  to-day,  while 
the  commonwealth  is  for  all  time.  I  agree 
with  the  gentleman  in  the  maxim  which  he  bor 
rows  from  Aristotle,  "Let  the  public  weal  be 
under  the  protection  of  the  law;"  but  I  claim 
that  in  war,  as  in  peace,  by  the  very  terms  of 
the  Constitution  of  the  country,  the  public 
safety  is  under  the  protection  of  the  law  ;  that 
the  Constitution  itself  has  provided  for  the  de 
claration  of  war  for  the  common  defense,  to 
suppress  rebellion,  to  repel  invasion,  and  by 
express  terms,  has  declared  that  whatever  is 
necessary  to  make  the  prosecution  of  the  war 
successful,  may  be  done,  and  ought  to  be  done, 
and  is  therefore  constitutionally  lawful. 

Who  will  dare  to  say  that  in  time  of  civil 
war  "  no  person  shall  be  deprived  of  life  lib 
erty  and  property,  without  due  process  of  law?" 
This  is  a  provision  of  your  Constitution,  than 
which  there  is  none  more  just  or  sacred  in  it; 
it  is,  however,  only  the  law  of  peace,  not  of 
war.  In  peace,  that  wise  provision  of  the  Con 
stitution  must  be,  and  is,  enforced  by  the  civil 
courts ; 
extent, 


in  war,  it  must  be,  and  is,  to  a  great 
inoperative  and  disregarded.  The 
thousands  slain  by  your  armies  in  battle  were 
deprived  of  life  "without  due  process  of  law." 
All  spies  arrested,  convicted  and  executed  by 


privcd  of  liberty  and  ufe  "  without  due  process 
of  law;"  all  enemies  captured  and  held  as 
prisoners  of  war  are  deprived  of  liberty  "with 
out  due  process  of  law;"  all  owners  whose 
property  is  forcibly  seized  and^  appropriated  in 
war  are  deprived  of  their  property  "  without 
due  process  of  law."  The  Constitution  recog 
nizes  the  principle  of  common  law,  that  every 
man's  house  is  his  castle;  that  his  home,  the 
shelter  of  his  wife  and  children,  is  his  most 
sacred  possession  ;  and  has  therefore  specially 
provided,  "that  no  soldier  shall  in  time  of  peace 
be  quartered  in  any  house,  without  the  con 
sent  of  its  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law  [III  Amend.]  ; 
thereby  declaring  that,  in  time  of  war,  Con 
gress  may  by  law  authorize,  as  it  has  done, 
that  without  the  consent  and  against  the  con 
sent  of  the  owner,  the  soldier  may  be  quar 
tered  in  any  man's  house,  and  upon  any  man's 
hearth.  What  I  have  said  illustrates  the  pro 
position,  that  in  time  of  war  the  civil  tribunals 
of  justice  are  wholly  or  partially  silent,  as  the 
public  safety  may  require  ;  that  the  limitations 
and  provisions  of  the  Constitution  in  favor  of 
life,  liberty  and  property  are  therefore  wholly 
or  partially  suspended.  In  this  I  am  sustained 
by  an  authority  second  to  none  with  intelli 
gent  American  citizens.  Mr.  John  Quincy 
Adams,  than  whom  a  purer  man  or  a  wiser 
statesman  never  ascended  the  chair  of  the 
Chief  Magistracy  in  America,  said  in  his  place 
in  the  House  of  Representatives,  in  1836,  that : 

"In  the  authority  given  to  Congress  by  the 
Constitution  of  the  United  States  to  declare 
war,  all  the  powers  incident  to  war  are  by 
necessary  implication  conferred  upon  the  Gov 
ernment  of  the  United  States.  Now  the  pow 
ers  incidental  to  war  are  derived,  not  from 
their  internal,  municipal  source,  but  from  the 
laws  and  usages  of  nations.  There  are,  then, 
in  the  authority  of  Congress  and  of  the  Execu 
tive,  two  classes  of  powers  altogether  different 
in  their  nature,  and  often  incompatible  with 
each  other,  the  war  power  and  the  peace  power. 
The  peace  power  is  limited  by  regulations  and 
restricted  by  provisions  prescribed  within  the 
Constitution  itself.  The  war  power  is  limited 
only  by  the  laws  and  usage  of  nations.  This 
aower  is  tremendous ;  it  is  strictly  constitu 
tional,  but  it  breaks  down  every  barrier  so 
anxiously  erected  for  the  protection  of  liberty, 
of  property,  and  of  life." 

If  this  be  so,  how  can  there  be  trial  by  jury 
for  military  offenses  in  time  of  civil  war?  If 
you  can  not,  and  do  not,  try  the  armed  enemy 
jefore  you  shoot  him,  or  the  captured  enemy 
)efore  you  imprison  him,  why  should  you  be 
leld  to  open  the  civil  courts  and  try  the  spy, 
he  conspirator  and  the  assassin,  in  the  secret 
service  of  the  public  enemy,  by  jury,  before 
you  convict  and  punish  him  ?  Why  not  clamor 
igainst  holding  imprisoned  the  captured  armed 
rebels,  deprived  of  their  liberty  without  due 
>rocess  of  law?  Are  they  not  citizens  ?  Why 
not  clamor  against  slaying,  for  their  crime  of 
reason,  which  is  cognizable  in  the  civil  courts, 
jy  your  rifled  ordnance  and  the  leaden  hail  of 
•our  musketry  in  battle,  these  public  enemies, 


your  military  tribunals  in  time  of  war  are  de-i  without  trial  by  jury  ?     Are  they  not  citizens? 


366 


THE    CONSPIRACY   TRIAL. 


Why  is  the  clamor  confined  exclusively  to  the 
trial  by  military  tribunals  of  justice  of  trait 
orous  spies,  traitorous  conspirators,  and  as 
sassins  hired  to  do  secretly  what  the  armed 
rebel  attempts  to  do  openly — murder  your  na 
tionality  by  assassinating  its  defenders  and 
its  executive  officers?  Nothing  can  be  clearer 
than  that  the  rebel  captured  prisoner,  being  a 
citizen  of  the  republic,  is  as  much  entitled  to 
trial  by  jury  before  he  is  committed  to  prison, 
as  the  spy,  or  the  aider  and  abettor  of  the  trea 
son  by  conspiracy  and  assassination,  being  a 
citizen,  is  entitled  to  such  trial  by  jury,  before 
he  is  subjected  to  the  just  punishment  of  the 
law  for  his  great  crime.  I  think  that  in  time 
of  war  the  remark  of  Montesquieu,  touching 
the  civil  judiciary,  is  true  :  that  "it  is  next  to 
nothing."  Hamilton  well  said,  "The  Execu 
tive  holds  the  sword  of  the  community;  the 
judiciary  has  no  direction  of  the  strength  of 
society;  it  has  neither  force  nor  will;  it  has 
judgment  alone,  and  is  dependent  for  the  ex 
ecution  of  that  upon  the  arm  of  the  Executive." 
The  people  of  these  States  so  understood  the 
Constitution,  and  adopted  it,  and  intended 
thereby,  without  limitation  or  restraint,  to  em 
power  their  Congress  and  Executive  to  author 
ize  by  law,  and  execute  by  force,  whatever  the 
public  safety  might  require,  to  suppress  rebel 
lion  or  repel  invasion. 

Notwitstanding  all  that  has  been  said  by 
the  counsel  for  the  accused  to  the  contrary,  the 
Constitution  has  received  this  construction 
from  the  day  of  its  adoption  to  this  hour. 
The  Supreme  Court  of  the  United  States  has 
solemnly  decided  that  the  Constitution  has 
conferred  upon  the  Government  authority  to 
employ  all  the  means  necessary  to  the  faithful 
execution  of  all  the  powers  which  that  Consti 
tution  enjoins  upon  the  Government  of  the 
United  States,  and  upon  every  department  and 
every  officer  thereof.  Speaking  of  that  pro- 
Tision  of  the  Constitution  which  provides  that 
"Congress  shall  have  power  to  make  all  laws 
that  may  be  necessary  and  proper  to  carry 
into  effect  all  powers  granted  to  the  Govern 
ment  of  the  United  States,  or  to  any  depart 
ment  or  officer  thereof,"  Chief  Justice  Marshall, 
in  his  great  decision  in  the  case  of  McCulloch 
vs.  State  of  Maryland,  says  : 

"The  powers  given  to  the  Government  imply 
the  ordinary  means  of  execution,  and  the  Gov 
ernment,  in  all  sound  reason  and  fair  interpre 
tation,  must  have  the  choice  of  the  means  which 
it  deems  the  most  convenient  and  appropriate 
to  the  execution  of  the  power.  *  *  *  The 
powers  of  the  Government  were  given  for  the 
welfare  of  the  nation;  they  were  intended  to 
endure  for  ages  to  come,  and  to  be  adapted  to 
the  various  crises  in  human  affairs.  To  pre 
scribe  the  specific  means  by  which  Government 
should,  in  all  future  time,  execute  its  power, 
and  to  confine  the  choice  of  means  to  such  nar 
row  limits  as  should  not  leave  it  in  the  power 
of  Congress  to  adopt  any  which  might  be  ap 
propriate  and  conducive  to  the  end,  would  be 
most  unwise  and  pernicious."  4  Wheaton.  420. 
Words  fitly  spoken!  which  illustrated  at 
the  time  of  their  utterance  the  wisdom  of  the 
Constitution  in  providing  this  general  grant 


of  power  to  meet  every  possible  exigency  which 
the  fortunes  of  war  might  cast  upon  the  coun 
try,  and  the  wisdom  of  which  words,  in  turn, 
has  been  illustrated  to-day  by  the  gigantic  and 
triumphant  struggle  of  the  people  during  the 
last  four  years  for  the  supremacy  of  the  Con 
stitution,  and  in  exact  accordance  with  its 
provisions.  In  the  light  of  these  wonderful 
events,  the  words  of  Pinckney,  uttered  when 
the  illustrious  Chief  Justice  had  concluded  his 
opinion,  "The  Constitution  of  my  country  is 
immortal!"  seem  to  have  become  words  ol 
prophesy.  Has  notthis  great  tribunal,  through 
the  chief  of  all  its  judges,  by  this  luminous 
and  profound  reasoning,  declared  that  the 
Government  may  by  law  authorize  the  Execu 
tive  to  employ,  in  the  prosecution  of  war,  the 
ordinary  means,  and  all  the  means  necessary 
and  adapted  to  the  end?  And  in  the  othei 
decision,  before  referred  to,  in  the  8th  of 
Cranch,  arising  during  the  late  war  with  Great 
Britain,  Mr.  Justice  Story  said : 

"  When  the  legislative  authority,  to  whom 
the  right  to  declare  war  is  confided,  has  de 
clared  war  in  its  most  unlimited  manner,  the 
executive  authority,  to  whom  the  execution  of 
the  war  is  confided,  is  bound  to  carry  it  into 
effect.  He  has  a  discretion  vested  in  him  as 
to  the  manner  and  extent,  but  he  can  not  law 
fully  transcend  the  rules  of  warfare  estab 
lished  among  civilized  nations.  He  can  not 
lawfully  exercise  powers  or  authorize  proceed 
ings  which  the  civilized  world  repudiates  and 
disclaims.  The  sovereignty,  as  to  declaring 
war  and  limiting  its  effects,  rests  with  the 
Legislature.  The  sovereignty,  as  to  its  execu 
tion,  rests  with  the  President."  Brown  vs. 
United  States,  8  Oranch,  153. 

Has  the  Congress,  to  whom  is  committed  the 
sovereignty  of  the  whole  people  to  declare  war, 
by  legislation  restricted  the  President,  or  at 
tempted  to  restrict  him,  in  the  prosecution  of 
this  war  for  the  Union,  from  exercising  all 
the  "powers"  and  adopting  all  the  "proceed 
ings"  usually  approved  and  employed  by  the 
civilized  world?  He  would,  in  my  judgment, 
be  a  bold  man  who  asserted  that  Congress  has 
so  legislated;  and  the  Congress  which  should 
by  law  fetter  the  executive  arm  when  raised 
for  the  common  defense,  would,  in  my  opinion, 
be  false  to  their  oath.  That  Congress  may  pre 
scribe  rule,5*  for  the  government  of  the  army 
and  navy,  and  the  militia  when  in  actual  ser 
vice,  by  articles  of  war,  is  an  express  grant 
of  power  in  the  Constitution,  which  Congress 
has  rightfully  exercised,  and  which  the  Exec 
utive  must  and  does  obey.  That  Congress 
may  aid  the  Executive  by  legislation  in  the 
prosecution  of  a  war,  civil  or  foreign,  is  ad 
mitted.  That  Congress  may  restrain  the  Exec 
utive,  and  arraign,  try,  and  condemn  him  for 
wantonly  abusing  the  great  trust,  is  expressly 
declared  in  the  Constitution.  That  Congress 
shall  pass  all  laws  necessary  to  enable  the  Ex 
ecutive  to  execute  the  laws  of  the  Union,  sup 
press  insurrection,  and  repel  invasion,  is  one 
of  the  express  requirements  of  the  Constitu 
tion,  for  the  performance  of  which  the  Con 
gress  is  bound  by  an  oath. 

What  was  the  legislation  of  Congress  when 


ARGUMENT    OF   JOHN   A.    BINGHAM. 


367 


treason  fired  its  first  gun  on  Sumter?  By  the 
act  of  1795  it  is  provided  that  whenever  the 
laws  of  the  United  States  shall  be  opposed,  or 
the  execution  thereof  obstructed,  in  any  State, 
by  combinations  too  powerful  to  be  suppressed 
by  the  ordinary  course  of  judicial  proceeding, 
or  by  the  powers  vested  in  the  marshals,  it 
shall  be  lawful  by  this  act  for  the  President  to 
call  forth  the  militia  of  such  State,  or  of  any 
other  State  or  States,  as  may  be  necessary  to 
suppress  such  combinations  and  to  cause  the 
laws  to  be  executed.  1st  Statutes  at  Large,  424. 
By  the  act  of  1807  it  is  provided  that  in  case 
of  insurrection  or  obstruction  to  the  laws,  either 
of  th;-  United  States  or  of  any  individual  State 
or  Territory,  where  it  is  lawful  for  the  President 
of  the  United  States  to  call  forth  the  militia 
for  the  purpose  of  suppressing  such  insurrec 
tion  or  of  causing  the  laws  to  be  duly  executed, 
it  shall  be  lawful  for  him  to  employ  for  such 
purpose  such  part  of  the  land  or  naval  forces 
of  the  United  States  as  shall  be  judged  neces 
sary.  Id  Statutes  at  Large,  443. 

Can  any  one  doubt  that,  by  these  acts,  the 
President  is  clothed  with  full  power  to  deter 
mine  whether  armed  insurrection  exists  in  any 
State  or  Territory  of  the  Union,  and,  if  so,  to 
make  war  upon  it  with  all  the  force  he  may 
deem  necessary  or  be  able  to  command  ?  By 
the  simple  exercise  of  this  great  power  it  neces 
sarily  results  that  he  may,  in  the  prosecution 
"of  the  war  for  the  suppression  of  such  insur 
rection,  suspend,  as  far  as  may  be  necessary, 
the  civil  administration  of  justice  by  substi 
tuting  in  its  stead  martial  law,  which  is  simply 
the  common  law  of  war.  If,  in  such  a  mo 
ment,  the  President  may  make  no  arrests  with 
out  civil  warrant,  and  may  inflict  no  violence 
or  penalties  on  persons  (as  is  claimed  here  for 
the  accused),  without  first  obtaining  the  ver 
dict  of  juries  and  the  judgment  of  civil  courts, 
then  is  this  legislation  a  mockery,  and  the 
Constitution,  which  not  only  authorized  but  en 
joined  its  enactment,  but  a  glittering  general 
ity  and  a  splendid  bauble.  Happily  the  Su 
preme  Court  has  settled  all  controversy  on  this 
question.  In  speaking  of  the  Rhode  Island  in 
surrection  the  Court  say  : 

"The  Constitution  of  the  United  States,  as 
far  as  it  has  provided  for  an  emergency  of 
this  kind,  and  authorized  the  general  Govern 
ment  to  interfere  in  the  domestic  concerns  of  a 
State,  has  treated  the  subject  as  political  in  its 
nature,  and  placed  the  power  in  the  hands  of 
that  department."  *  *  *  *  * 
"By  the  act  of  1795  the  power  of  deciding 
whether  the  exigency  has  arisen  upon  which 
the  Government  of  the  United  States  is  bound 
to  interfere  is  given  to  the  President." 

The  Court  add: 

"When  the  President  has  acted,  and  called 
out  the  militia,  is  a  Circuit  Court  of  the  United 
States  authorized  to  inquire  whether  his  de 
cision  was  right?  If  it  could,  then  it  would 
'  become  the  duty  of  the  Court,  provided  it  came 
to  the  conclusion  that  the  President  had  decided 
incorrectly,  to  discharge  those  who  were  ar 
rested  or  detained  by  the  troops  in  the  service 
of  the  United  States."  *  *  *  "If 
the  judicial  power  extends  so  far,  the  guaran 


tee  contained  in  the  Constitution  of  the  United 
States  is  a  guarantee  of  anarchy  and  not  of 
order.'  *  *  *  "Yet,  if  this  right 
does  not  reside  in  the  courts  when  the  conflict 
is  raging,  if  the  judicial  power  is,  at  that  time, 
bound  to  follow  the  decision  of  the  political,  it 
must  be  equally  bound  when  the  contest  is  over. 
It  can  not,  when  peace  is  restored,  punish,  as 
offenses  and  crimes,  the  acts  which  it  before 
recognized  and  was  bound  to  recognize  as  law 
ful.'1  Luther  vs.  Borden,  1  Howard,  42,  43. 

If  this  be  law,  what  becomes  of  the  volun 
teer  advice  of  the  volunteer  counsel,  by  him 
given  without  money  and  without  price,  to  this 
Court,  of  their  responsibility — their  personal 
responsibility — for  obeying  the  orders  of  the 
President  of  the  United  States,  in  trying  per 
sons  accused  of  the  murder  of  the  Chief  Mag 
istrate  and  Commander-in-Chief  of  the  army 
and  navy  of  the  United  States  in  time  of  rebel 
lion,  and  in  pursuance  of  a  conspiracy  entered 
into  with  the  public  enemy?  I  may  be  par 
doned  for  asking  the  attention  of  the  Court  to 
a  further  citation  from  this  important  decision, 
in  which  the  Court  say  the  employment  of  mil 
itary  power,  to  put  down  an  armed  insurrec 
tion,  "is  essential  to  the  existence  of  every 
Government,  and  is  as  necessary  to  the  States 
of  this  Union  as  to  any  other  Government;  and 
if  the  Government  of  the  State  deem  the  armed 
opposition  so  formidable  as  to  require  the  use 
of  military  force  and  the  declaration  of  MAR 
TIAL  LAW,  we  see  no  ground  upon  which  this 
Court  can  question  its  authority."  Ibid.  This 
decision,  in  terms,  declared  that,  under  the  act 
of  1795,  the  President  had  power  to  decide, 
and  did  decide,  the  question  so  as  to  exclude 
further  inquiry  whether  the  State  Government, 
which  thus  employed  force  and  proclaimed 
martial  law,  was  the  Government  of  the  State, 
and,  therefore,  was  permitted  to  act.  If  a  State 
may  do  this,  to  put  down  armed  insurrection, 
may  not  the  Federal  Government  as  Avell? 
The  reason  of  the  man  who  doubts  it  may  justly 
be  questioned.  I  but  quote  the  language  of 
that  tribunal,  in  another  case  before  cited, 
when  I  say  the  Constitution  confers  upon  the 
President  the  whole  executive  power. 

We  have  seen  that  the  proclamation  of  block 
ade,  made  by  the  President,  was  affirmed  by 
the  Supreme  Court  as  a  lawful  and  valid  act, 
although  its  direct  effect  was  to  dispose  of  the 
property  of  whoever  violated  it,  whether  citizen 
or  stranger.  It  is  difficult  to  perceive  what 
course  of  reasoning  can  be  adopted,  in  the 
light  of  that  decision,  which  will  justify  any 
man  in  saying  that  the  President  had  not  the 
like  power  to  proclaim  martial  law  in  time  of 
insurrection  against  the  United  States,  and  to 
establish,  according  to  the  customs  of  war 
among  civilized  nations,  military  tribunals  of 
justice  for  its  enforcement,  and  for  the  punish 
ment  of  all  crimes  committed  in  the  interests 
of  the  public  enemy. 

These  acts  of  the  President  have,  however, 
all  been  legalized  by  the  subsequent  legisla 
tion  of  Congress,  although  the  Supreme  Court 
decided,  in  relation  to  the  proclamation  of 
blockade,  that  no  such  legislation  was  neces 
sary. 


368 


THE    CONSPIRACY   TRIAL. 


By  the  act  of  August  6,  1861,  ch.  63,  sec. 
3,  it  is  enacted  that : 

"All  the  acts,  proclamations  und  orders  of  the 
President  of  the  United  States,  after  the  4th 
of  Marchj  1861,  respecting  the  army  and  navy 
of  the  United  States,  and  calling  out,  or  relating 
to,  the  militia  or  volunteers  from  the  States,  are 
hereby  approved  in  all  respects,  legalized  and 
made  valid  to  the  same  extent,  and  with  the 
same  effect,  as  if  they  had  been  issued  and 
done  under  the  previous  express  authority  and 
direction  of  the  Congress  of  the  United  States." 
12  Stat.  at  Large,  326. 

This  act  legalized,  if  any  such  legalization 
was  necessary,  all  that  the  President  had  done 
from  the  day  of  his  inauguration  to  that  hour, 
in  the  prosecution  of  the  war  for  the  Union. 
He  had  suspended  the  privilege  of  the  writ  of 
habeas  corpus,  and  resisted  its  execution  when 
issued  by  the  Chief  Justice  of  the  United  States; 
he  had  called  out  and  accepted  the  services  of  a 
large  body  of  volunteers  for  a  period  not  pre 
viously  authorized  by  law ;  he  had  declared  a 
blockade  of  the  Southern  ports;  he  had  de 
clared  the  Southern  States  in  insurrection;  he 
had  ordered  the  armies  to  invade  them  and 
suppress  it;  thus  exercising,  in  accordance 
with  the  laws  of  war,  power  over  the  life,  the 
liberty  and  the  property  of  the  citizens.  Con 
gress  ratified  it,  arid  affirmed  it. 

In  like  manner,  and  by  subsequent  legisla 
tion,  did  the  Congress  ratify  and  affirm  the 
proclamation  of  martial  law  of  September  25, 
1862.  That  proclamation,  as  the  Court  will 
have  ox»served,  declares  that,  during  the  exist 
ing  insurrection,  all  rebels  and  insurgents, 
their  aiders  and  abettors  within  the  United 
States,  and  all  persons  guilty  of  any  disloyal 
practice  affording  aid  and  comfort  to  the  rebels 
against  the  authority  of  the  United  States, 
shall  be  subject  to  martial  law,  and  liable  to 
trial  and  punishment  bv  courts-martial  or  mili 
tary  commission;  and,  second,  that  the  writ  of 
habeas  corpus  is  suspended  in  respect  to  all  per 
sons  arrested,  or  who  are  now,  or  hereafter 
during  the  rebellion  shall  be,  imprisoned  in  any 
fort,  etc.,  by  any  military  authority,  or  by  the 
sentence  of  any  court-martial  or  military  com 
mission. 

One  would  suppose  that  it  needed  no  argu 
ment  to  satisfy  an  intelligent  and  patriotic  cit 
izen  of  the  United  States  that,  by  the  ruling  of 
the  Supreme  Court  cited,  so  much  of  this  procla 
mation  as  declares  that  all  rebels  and  insur 
gents,  their  aiders  and  abettors,  shall  be  sub 
ject  to  martial  law,  and  be  liable  to  trial  and 
punishment  by  court-martial  or  military  com 
mission,  needed  no  ratification  by  Congress. 
Every  step  that  the  President  took  against  the 
rebels  and  insurgents  was  taken  in  pursuance 
of  the  rules  of  war,  and  was  an  exercise  of 
martini  law.  Who  says  that  he  should  not  de 
prive  them,  by  the  authority  of  this  law.  of  life 
rind  liberty  ?  Are  the  aiders  and  abettors  of 
these  insurgents  entitled  to  any  higher  consid 
eration  than  the  armed  insurgents  themselves? 
It  is  against  these  that  the  President  proclaimed 
martial  law,  and  against  all  others  who  were 
guilty  of  any  disloyal  practice  affording  aid 
and  comfort  to  rebels  against  the  authority  of 


the  United  States.  Against  these  lie  suspended 
the  privilege  of  the  writ  of  habeas  corpus;  and 
these,  and  only  such  as  these,  were,  by  tlmt 
proclamation,  subjected  to  trial  and  punish 
ment  by  court-martial  or  military  commission. 

That  the  proclamation  coA'ers  the  offense 
charged  here,  no  man  will,  or  dare,  for  a  mo 
ment  deny.  Was  it  not  a  disloyal  practice? 
Was  it  not  aiding  and  abetting  the  insurgents 
and  rebels  to  enter  into  a  conspiracy  with  them 
to  kill  and  murder,  within  your  Capital  and 
your  intrenched  camp,  the  Commander-in- 
Chief  of  our  army,  your  Lieutenant-General, 
and  the  Vice-President  and  the  Secretary  of 
State,  with  intent  thereby  to  aid  the  rebellion, 
and  subvert  the  Constitution  and  laws  of  the 
United  States?  But  it  is  said  that  the  Presi 
dent  could  not  establish  a  court  for  their  trial, 
and,  therefore,  Congress  must  ratify  and  affirm 
this  proclamation.  I  have  said  before  that 
such  an  argument  comes  with  ill  grace  from 
the  lips  of  him  who  declared,  as  solemnly,  that 
neither  by  the  Congress  nor  by  the  President 
could  either  the  rebel  himself  or  his  aider  or 
abettor  be  lawfully  and  constitutionally  sub 
jected  to  trial  by  any  military  tribunal,  whether 
court-martial  or  military  commission.  But  the 
Congress  did  ratify,  in  the  exercise  of  the 
power  vested  in  them,  every  part  of  this  procla 
mation.  I  have  said,  upon  the  authority  of  the 
fathers  of  the  Constitution,  and  of  its  judicial 
interpreters,  that  Congress  has  power,  bv  legis 
lation,  to  aid  the  Executive  in  the  suppression 
of  rebellion,  in  executing  the  laws  of  the 
Union  when  resisted  by  armed  insurrection, 
and  in  repelling  invasion. 

By  the  act  of  March  3,  1863,  the  Congress  of 
the  United  States,  by  the  first  section  thereof, 
declared  that  during  the  present  rebellion  the 
President  of  the  United  States,  whenever  in 
his  judgment  the  public  safety  may  require  it, 
is  authorized  to  suspend  the  writ  of  habeas  cor 
pus  in  any  case  throughout  the  United  States 
or  any  part  thereof.  By  the  fourth  section  of 
the  same  act,  it  is  declared  that  any  order  of 
the  President,  or  under  his  authority,  made  at 
any  time  during  the  existence  of  the  present 
rebellion,  shall  be  a  defense  in  all  courts  to 
any  action  or  prosecution,  civil  or  criminal, 
pending  or  to  be  commenced,  for  any  search, 
seizure,  arrest,  or  imprisonment,  made,  done, 
or  committed,  or  acts  omitted  to  be  done,  under 
and  by  virtue  of  such  order.  By  the  fifth  sec 
tion  it  is  provided,  that,  if  any  suit  or  prose 
cution,  civil  or  criminal,  has  been  or  shall  be 
commenced  in  any  State  court  against  any  offi 
cer,  civil  or  military,  or 'against  any  other  per 
son,  for  any  arrest  or  imprisonment  made,  or 
others  trespasses  or  wrongs  done  or  commit 
ted,  or  any  act  omitted  to  be  done  at  any  time 
during  the  present  rebellion,  by  virtue  of  or 
under  color  of  any  authority  derived  from  or 
exercised  by  or  under  the  President  of  the 
United  States,  if  the  defendant  shall,  upon 
appearance  in  such  court,  file  a  petition  stating 
the  facts  upon  affidavit,  etc.,  as  aforesaid,  for 
the  removal  of  the  cause  for  trial  to  the  Circuit 
Court  of  the  United  States,  it  shall  be  the  duty 
of  the  State  court,  upon  his  giving  security,  to 
proceed  no  further  in  the  cause  or  prosecution. 


ARGUMENT    OF    JOHN   A.    BiNGHAM. 


369 


Thus  declaring  that  all  orders  of  the  President, 
made  at  any  time  during  the  existence  of  the 
present  rebellion,  and  all  acts  done  in  pursu 
ance  thereof,  shall  be  held  valid  in  the  courts 
of  justice.  Without  further  inquiry,  these 
provisions  of  this  statute  embrace  Order  141, 
which  is  the  proclamation  of  martial  law,  and 
necessarily  legalize  every  act  done  under  it, 
either  before  the  passage  of  the  act  of  1863  or 
since.  Inasmuch  as  that  proclamation  ordered 
that  all  rebels,  insurgents,  their  aiders  and 
abettors,  and  persons  guilty  of  any  disloyal 
practice  affording  aid  and  comfort  to  rebels 
against  the  authority  of  the  United  States,  at 
any  time  during  the  existing  insurrection, 
should  be  subject  to  martial  law,  and  liable  to 
trial  and  punishment  by  military  commission, 
the  sections  of  the  law  just  cited  declaring  law 
ful  all  acts  done  in  pursuance  of  such  order, 
including,  of  course,  the  trial  and  punishment 
by  military  commission  of  all  such  offenders, 
as  directly  legalized  this  order  of  the  Presi 
dent  as  it  is  possible  for  Congress  to  legalize 
or  authorize  any  executive  act  whatever. 
12  Slat,  at  Large,  755—6. 

But  after  assuming  and  declaring  with  great 
earnestness  in  his  argument  that  no  person 
could  be  tried  and  convicted  for  such  crimes, 
by  any  military  tribunal,  whether  a  court-mar 
tial  or  a  military  commission,  save  those  in 
the  land  or  naval  service  in  time  of  war,  the 
gentleman  makes  the  extraordinary  statement 
that  the  creation  of  a  military  commission 
must  be  authorized  by  the  legislative  depart 
ment,  and  demands,  if  there  be  any  such  leg 
islation,  "let  the  statute  be  produced."  The 
statute  has  been  produced.  The  power  so  to 
try,  says  the  gentleman,  must  be  authorized 
by  Congress,  when  the  demand  is  made  for 
such  authority.  Does  not  the  gentleman  there 
by  give  up  his  argument,  and  admit,  that  if 
the  Congress  has  so  authorized  the  trial  of  all 
aiders  and  abettors  of  rebels  or  insurgents  for 
whatever  they  do  in  aid  of  such  rebels  and  in 
surgents  during  the  insurrection,  the  statute 
and  proceedings  under  it  are  lawful  and  valid? 
I  have  already  shown  that  the  Congress  have 
so  legislated  by  expressly  legalizing  Order  No. 
141,  which  directed  the  trial  of  all  rebels,  their 
aiders  and  abettors,  by  military  commission. 
Did  not  Congress  expressly  legalize  this  order 
by  declaring  that  the  order  shall  be  a  defense 
in  all  courts  to  any  action  or  prosecution,  civil 
or  criminal,  for  acts  done  in  pursuance  of  it? 
No  amount  of  argument  could  make  this  point 
clearer  than  the  language  of  the  statute  itself. 
But,  says  t^  gentleman,  if  there  be  a  statute 
authorizing  trials  by  military  commission, 
"Let  it  be  produced." 

By  the  act  of  March  3,  1863,  it  is  provided 
in  section  thirty  that  in  time  of  war,  insur 
rection,  or  rebellion,  murder  and  assault  with 
intent  to  kill,  etc.,  when  committed  by  persons 
in  the  military  service,  shall  be  punishable  by 
the  sentence  of  a  court-martial  or  military 
commission,  and  the  punishment  of  such  offenses 
shall  never  be  less  than  those  inflicted  by  the 
laws  of  the  State  or  District  in  which  they 
may  have  been  committed.  By  the  38th  sec 
tion  of  the  same  act,  it  is  provided  that  all 

24 


persons  who,  in  time  of  war  or  rebellion 
against  the  United  States,  shall  be  found  lurk 
ing  or  acting  as  spies  in  or  about  the  camps, 
etc.,  of  the  United  States,  or  elsewhere,  shall 
be  triable  by  a  military  commission,  and  shall, 
upon  conviction,  suffer  death.  Here  is  a  stat 
ute  which  expressly  declares  that  all  persons, 
whether  citizens  or  strangers,  who  in  time  of 
rebellion  shall  be  found  acting  as  spies,  shall 
suffer  death  upon  conviction  by  a  military 
commission.  Why  did  not  the  gentleman  give 
us  some  argument  upon  this  law?  We  have 
seen  that  it  was  the  existing  law  of  the  Untoed 
States  under  the  Confederation.  Then,  and 
since,  men  not  in  the  land  or  naval  forces  of 
the  United  States  have  suffered  death  for  this 
offense  upon  conviction  by  courts-martial.  If 
it  was  competent  for  Congress  to  authorize 
their  trial  by  courts-martial,  it  was  equal 
ly  competent  for  Congress  to  authorize  their 
trial  by  military  commission,  and  accord 
ingly  they  have  done  so.  By  the  same  authority 
the  Congress  may  extend  the  jurisdiction  of 
military  commissions  over  all  military  offenses 
or  crimes  committed  in  time  of  rebellion  or  war 
in  aid  of  the  public  enemy;  and  it  certainly 
stands  with  right  reason,  that  if  it  were  just 
to  subject  to  death,  by  the  sentence  of  a  military 
commission,  all  persons  who  should  be  guilty 
merely  of  lurking  as  spies  in  the  interests  of  the 
public  enemy  in  time  of  rebellion,  though  they 
obtained  no  information,  though  they  inflicted 
no  personal  injury,  but  were  simply  overtaken 
and  detected  in  the  endeavor  to  obtain  intelli 
gence  for  the  enemy,  those  who  enter  into 
conspiracy  with  the  enemy,  not  only  to  lurk  as 
spies  in  your  camp,  but  to  lurk  there  as  murder 
ers  and  assassins,  and  who,  in  pursuance  of 
that  conspiracy,  commit  assassination  and  mur 
der  upon  the  Commander-in-Chief  of  your  army 
within  your  camp  and  in  aid  of  rebellion, 
should  be  subject  in  like  manner  to  trial  by  mil 
itary  commission.  Stat.  at  Large  12,  736-' 7,  ch.  8. 

Accordingly,  the  President  having  so  declared, 
the  Congress,  as  we  have  stated,  have  affirmed 
that  his  order  was  valid,  and  that  all  persons 
acting  by  authority,  and  consequently  as  a 
court  pronouncing  such  sentence  upon  the  of 
fender  as  the  usage  of  war  requires,  are  justified 
by  the  law  of  the  land.  With  all  respect,  permit 
me  to  say  that  the  learned  gentleman  has  mani 
fested  more  acumen  and  ability  in  his  elaborate 
argument  by  what  he  has  omitted  to  say  than 
by  anything  which  he  has  said.  By  the  act  of 
July  2,  1864,  cap.  215,  it  is  provided  that  the 
commanding  general  in  the  field,  or  the  com 
mander  of  the  department,  as  the  case  may  be, 
shall  have  power  to  carry  into  execution  all 
sentences  against  guerrilla  marauders  for  rob 
bery,  arson,  burglary,  etc.,  and  from  violation 
of  the  laws  and  customs  of  war,  as  well  as 
sentences  against  spies,  mutineers,  deserters, 
and  murderers. 

From  the  legislation  I  have  cited,  it  is  appa 
rent  that  military  commissions  are  expressly 
recognized  by  the  law-making  power ;  that  they 
are  authorized  to  try  capitab  offenses  against 
citizens  not  in  the  service  of  the  United  States, 
and  to  pronounce  the  sentence  of  death  upon 
them;  and  that  the  commander  of  a  department, 


370 


THE    CONSPIRACY    TRIAL. 


or  the  commanding  general  in  the  field,  may 
carry  such  sentence  into  execution.  But,  says 
the  gentleman,  grant  all  this  to  be  so  ;  Congress 
has  not  declared  in  what  manner  the  court 
shall  be  constituted.  The  answer  to  that  ob 
jection  has  already  been  anticipated  in  the 
citation  from  Benet,  wherein  it  appeared  to  be 
the  rule  of  the  law  martial  that  in  the  punish 
ment  of  all  military  offenses  not  provided  for 
by  the  written  law  of  the  land,  military  com 
missions  are  constituted  for  that  purpose  by  the 


argument  of  the  gentleman,  would,  upon  pre 
sentation  of  such  charge  in  legal  form  against 
the  President,  constitute  the  high  court  of  im 
peachment  for  his  trial  and  condemnation,  has 
decided  the  question  in  advance,  and  declared 
upon  the  occasion  referred  to,  as  they  had 
before  decided  by  solemn  enactment,  that  this 
order  of  the  President  declaring  martial  law 
and  the  punishment  of  all  rebels  and  insurgents, 
the;r  aiders  and  abettors,  by  military  commis 
sion,  should  be  enforced  during  the  insurrection, 
as  the  law  of  the  land,  and  that  the  offenders 


authority  of  the  commanding  officer  or  the 
Cornmander-in-Chief,  as  the  case  may  be,  who  j  should  be  tried,  as  directed,  by  military  corn- 
selects  the  officers  of  a  court-martial ;  that  they  mission.  It  may  be  said  that  this  subsequent 
are  similarly  constituted,  and  their  proceedings  legislation  of  Congress,  ratifying  and  affirming 
conducted  according  to  the  same  general  rules,  what  had  been  done  by  the  President,  can  have 
That  is  a  part  of  the  very  law  martial  which  ,  no  validity.  Of  course  it  can  not  if  neither  the 
the  President  proclaimed,  and  which  the  Con- {  Congress  nor  the  Executive  can  authorize  the 


gress  has  legalized.  The  Proclamation  has  de 
clared  that  all  such  offenders  shall  be  tried  by 
military  commissions.  The  Congress  lias  legal 
ized  the  same  by  the  act  which  I  have  cited  ; 
and  by  every  intendment  it  must  be  taken  that, 
as  martial  law  is  by  the  Proclamation  declared 
to  be  the  rule  by  which  they  shall  be  tried,  the 
Congress,  in  affirming  the  act  of  the  President, 
simply  declared  that  they  should  be  tried  accord 
ing  to  the  customs  of  martial  bw  ;  that  the 
commission  should  be  constituted  by  the  Com- 
mander-in-Chief  according  to  the  rule  of  pro 
cedure  known  as  martial  law ;  and  that  the 
penalties  inflicted  should  be  in  accordance  with 
the  laws  of  war  and  the  usages  of  nations. 
Legislation  no  more  definite  than  this  has  been 
upon  your  statute-book  since  the  beginning  of 
the  century,  and  has  been  held  by  the  Supreme 
Court  of  the  United  States  valid  for  the  punish 
ment  of  offenders. 

By  the  32d  article  of  the  act  of  23d  April, 
1800,  it  is  provided  that  "  all  crimes  committed 
by  persons  belonging  to  the  navy  which  are  not 
specified  in  the  foregoing  articles  shall  be  pun 
ished  according  to  the  laws  and  customs  in  such 
eases  at  sea."  Of  this  article  the  Supreme 
Court  of  the  United  States  say,  that  when  of 
fenses  and  crimes  are  not  given  in  terms  or  by 
definition,  the  want  of  it  may  be  supplied  by  a 
comprehensive  enactment  such  as  the  32d  arti 
cle  of  the  rules  for  the  government  of  the  navy  ; 
which  means  that  courts-martial  have  juris 
diction  of  such  crimes  as  are  not  specified,  but 
which  have  been  recognized  to  be  crimes  and 
offenses  by  the  usages  in  the  navies  of  all  na 
tions,  and  that  they  shall  be  punished  according 
to  the  laws  and  customs  of  the  sea.  Dynes  vs. 
Hoover,  20  Howard,  82. 

But  it  is  a  fact  that  must  not  be  omitted  in  the 
reply  which  I  make  to  the  gentleman's  argu- 
gument,  that  an  effort  was  made  by  himself  and 
others  in  the  Senate  of  the  United  States,  on  the 
3d  of  March  last,  to  condemn  the  arrests,  impris 
onments,  etc.,  made  by  order  of  the  President  of 
the  United  States  in  pursuance  of  his  proclama 
tion,  and  to  reverse,  by  the  judgment  of  that 
body,  the  law  which  had  been  before  passed 
affirming  his  action,  which  effort  most  signally 
failed. 

Thus  we  see  that  the  body  which  by  the  Con 
stitution,  if  the  President  had  been  guilty  of 
the  misdemeanors  alleged  against  him  in  this 


proclamation  and  enforcement  of  martial  law, 
in  the  suppression  of  rebellion,  for  the  punish- 
mentof  all  persons  conhnitting  military  offenses 
in  aid  of  that  rebellion.  Assuming,  however,  as 
the  gentleman  seemed  to  assume,  by  asking  for 
the  legislation  of  Congress,  that  there  is  such 
power  in  Congress,  the  Supreme  Court  of  the 
United  States  has  solemnly  affirmed  that  such 
ratification  is  valid.  2  Black.  071. 

The  gentleman's  argument  is  full  of  citations 
of  English  precedent.  There  is  a  late  English 
precedent  bearing  upon  this  point — the  power 
of  the  legislature,  by  subsequent  enactment,  to 
legalize  executive  orders,  arrests,  and  impris 
onment  of  citizens — that  I  beg  leave  to  commend 
to  his  consideration.  I  refer  to  the  statute  of 
11  and  12  Victoria,  ch.  35,  entitled  "  An  act  to 
empower  the  lord  lieutenant  or  other  chief  gov 
ernor  or  governors  of  Ireland,  to  apprehend  and 
detain  until  the  first  day  of  March,  1849,  such 
persons  as  he  or  they  shall  suspect  of  conspiring 
against  her  Majesty's  person  and  government," 
passed  July  25,  1848,  which  statute  in  terms 
declares  that  all  and  everv  person  and  persons 
who  is,  are,  or  shall  be,  within  that  period, 
within  that  part  of  the  United  Kingdom  of 


England    and    Ii'eland 
on  the  day  the  act  shall 


called    Ireland,  at    or 
receive  her  Majesty's 


royal  assent,  or  after,  by  warrant  for  high  trea 
son  or  treasonable  practices,  or  suspicion  of  high 
treason  or  treasonable  practices,  signed  by  the 
lord  lieutenant,  or  other  chief  governor  or  gov 
ernors  of  Ireland  for  the  time  being,  or  his  or 
their  chief  secretary,  for  such  causes  as  afore 
said,  may  be  detained  in  safe  custody,  without 
bail  or  main  prize,  until  the  first  day  of  March, 
1849;  and  that  no  judge  or  justice  shall  bail 
or  try  any  such  person  or  persons  so  commit 
ted,  without  order  from  her  Majesty's  privy 
counsel,  until  the  said  first  day  of  March,  1849, 
any  law  or  statute  to  the  contrary  notwith- 
ing.  The  2d  section  of  this  act  provides  that, 
in  cases  where  any  persons  have  been,  before. 
the  passing  of  the  act,  arrested,  committed,  or 
detained  for  such  cause  by  warrant  or  warrants 
signed  by  the  officers  aforesaid,  or  either  of 
them,  it  may  be  lawful  for  the  person  or  per 
sons  to  whom  such  warrants  have  been  or  shall 
be  directed,  to  detain  such  person  or  persona  in 
his  or  their  custody  in  any  place  whatever  in  Ire 
land  ;  and  that  such  person  or  persons  to  whom 
such  warrants  have  been  or  shall  be  directed 


ARGUMENT    OF    JOHN   A.    BINGIIAM. 


371 


shall  be  deemed  and  taken,  to  all  intents  and 
purposes,  lawfully  authorized  to  take  into  safe 
custody  and  be  the  lawful  jailors  and  keepers  of 
sucH  persons  so  arrested,  committed,  or  detained. 

Here  the  power  of  arrest  is  given  by  the  act 
of  Parliament  to  the  governor  or  his  secretary  ; 
the  process  of  the  civil  courts  was  wholly  sus 
pended;  bail  was  denied  and  the  parties  im 
prisoned,  and  this  not  by  process  of  the  courts, 
but  by  warrant  of  the  chief  governor  or  his 
secretary  ;  not  for  crimes  charged  to  have  been 
committed,  but  for  being  suspected  of  treasonable 
practices.  Magna  charta  it  seems  opposes  no 
restraint,  notwithstanding  the  parade  that  is 
made  about  it  in  this  argument,  upon  the  power 
of  the  Parliament  of  England  to  legalize  arrests 
and  imprisonments  made  before  the  passage  of 
the  act  upon  an  executive  order,  and  without 
colorable  authority  of  statute  law,  and  to  au 
thorize  like  arrests  and  imprisonments  of  so 
many  of  six  million  of  people  as  such  executive 
officers  might  suspect  of  treasonable  practices. 

But,  says  the  gentleman,  whatever  may  be 
the  precedents,  English  or  American  ;  whatever 
may  be  the  provisions  of  the  Constitution ; 
whatever  may  be  the  legislation  of  Congress  ; 
whatever  may  be  the  proclamations  and  orders 
of  the  President  as  Comrnander-in-Chief,  it  is 
a  usurpation  and  a  tyranny  in  time  of  rebel 
lion  and  civil  war,  to  subject  any  citizen 
to  trial  for  any  crime  before  military  tri 
bunals,  save  such  citizens  as  are  in  the 
land  or  naval  forces,  and  against  this  usur 
pation,  which  he  asks  this  Court  to  rebuke 
by  solemn  decision,  he  appeals  to  public  opin 
ion.  I  trust  that  I  set  as  high  value  upon  en 
lightened  public  opinion  as  any  man.  I  recog 
nize  it  as  the  reserved  power  of  the  people 
which  creates  and  dissolves  armies,  which  cre 
ates  and  dissolves  legislative  assemblies,  which 
enacts  and  repeals  fundamental  laws,  the  bet 
ter  to  provide  for  personal  security  by  the  due 
administration  of  justice.  To  that  public  opin 
ion  upon  this  very  question  of  the  usurpation 
of  authority,  of  unlawful  arrests,  and  unlawful 
imprisonments,  and  unlawful  trials,  condem 
nations,  and  executions  by  the  late  President 
of  the  United  States,  an  appeal  has  already 
been  taken.  On  this  very  issue  the  President 
was  tried  before  the  tribunal  of  the  people,  that 
great  nation  of  freemen  who  cover  this  conti 
nent,  looking  out  upon  Europe  from  their  east 
ern  and  upon  Asia  from  their  western  homes. 
That  people  came  to  the  consideration  of  this 
i?sue,  not  unmindful  of  the  fact  that  the  first 
struggle  for  the  establishment  of  our  national 
ity  could  not  have  been,  and  was  not,  success 
fully  prosecuted  without  the  proclamation  and 
enforcement  of  martial  law,  declaring,  as  we 
have  seen,  that  any  inhabitant  who,  during 
that  war,  should  kill  any  loyal  citizen,  or  enter 
into  any  combination  for  that  purpose,  should, 
upon  trial  and  conviction  before  a  military 
tribunal,  be  sentenced  as  an  assassin,  traitor, 
or  spy,  and  should  suffer  death,  and  that  in 
this  last  struggle  for  the  maintenance  of  Amer 
ican  nationality,  the  President  but  followed  the 
example  of  the  illustrious  Father  of  his  Coun 
try.  Upon  that  issue  the  people  passed  judg 
ment  on  the  8th  day  of  last  November,  and 


declared  that  the  charge  of  usurpation  was  false. 
From  this  decision  of  the  people  there  lies  no 
appeal  on  this  earth.  Who  can  rightfully  chal 
lenge  the  authority  of  the  American  people  to 
decide  such  questions  for  themselves?  The 
voice  of  the  people,  thus  solemnly  proclaimed, 
by  the  omnipotence  of  the  ballot,  in  favor  of 
the  righteous  order  of  their  murdered  Presi 
dent,  issued  by  him  for  the  common  defense, 
for  the  preservation  of  the  Constitution,  and 
for  the  enforcement  of  the  laws  of  the  Union, 
ought  to  be  accepted,  and  will  be  accepted,  I 
trust,  by  all  just  men,  as  the  voice  of  God. 

May  it  please  the  Court:  I  have  said  thus 
much  touching  the  right  of  the  people,  under 
their  Constitution,  in  time  of  civil  war  and 
rebellion,  to  proclaim  through  their  Executive, 
with  the  sanction  and  approval  of  their  Con 
gress,  martial  law,  and  enforce  the  same  ac 
cording  to  the  usage  of  nations. 

I  submit  that  it  has  been  shown  that,  by  the 
letter  and  spirit  of  the  Constitution,  as  well  as 
by  its  contemporaneous  construction,  followed 
and  approved  by  every  department  of  the  Gov 
ernment,  this  right  is  in  the  people;  that  it  is 
inseparable  from  the  condition  of  war,  whether 
civil  or  foreign,  and  absolutely  essential  to  its 
vigorous  and  successful  prosecution;  that  ac 
cording  to  the  highest  authority  upon  Consti 
tutional  law,  the  proclamation  and  enforce 
ment  of  martial  law  are  "usual  under  all  Gov 
ernments  in  time  of  rebellion;"  that  our  own 
highest  judicial  tribunal  has  declared  this, 
and  solemnly  ruled  that  the  question  of  the 
necessity  for  its  exercise  rests  exclusively  with 
Congress  and  the  President;  and  that  the  de 
cision  of  the  political  departments  of  the  Gov 
ernment,  that  there  is  an  armed  rebellion  and 
a  necessity  for  the  employment  of  military 
force  and  martial  law  in  its  suppression,  con 
cludes  the  judiciary. 

In  submitting  what  I  have  said  in  support 
of  the  jurisdiction  of  this  honorable  Court, 
and  of  its  Constitutional  power  to  hear  and  de 
termine  this  issue,  1  have  uttered  my  own  con 
victions  ;  and  for  their  utterance  in  defense  of 
my  country,  and  its  right  to  employ  all  the 
means  necessarj'  for  the  common  defense  against 
armed  rebellion  and  secret  treasonable  con 
spiracy  in  aid  of  such  rebellion,  1  shall  neither 
ask  pardon  nor  offer  apology.  I  find  no  words 
with  which  more  fitly  to  conclude  all  I  have  to 
say  upon  the  question  of  the  jurisdiction  and 
Constitutional  authority  of  this  Court,  than 
those  employed  by  the  illustrious  Lord  Brough 
am  to  the  House  of  Peers  in  support  of  the  bill 
before  referred  to,  which  empowered  the  Lord 
Lieutenant  of  Ireland,  and  his  deputies,  to  ap 
prehend  and  detain,  for  the  period  of  seven 
months  or  more,  all  such  persons  within  that 
island  as  they  should  suspect  of  conspiracy 
against  Her  Majesty's  person  and  Government. 
Said  that  illustrious  man:  "A  friend  of  liberty 
I  have  lived,  and  such  will  I  die;  nor  care  I 
how  soon  the  latter  event  may  happen,  if  I  can 
not  be  a  friend  of  liberty  without  being  a  friend 
of  traitors  at  the  same  time — a  protector  of 
criminals  of  the  deepest  dye — an  accomplice 
of  foul  rebellion  and  of  its  concomitant,  civil 
war,  with  all  its  atrocities  and  all  its  fearful 


372 


THE    CONSPIRACY    TRIAL. 


consequences/'  Hansard's  Debates,  3d  series, 
vol.  100,  p.  685. 

Mai/  it  please  the  Court  :  It  only  remains 
for  me  to  sum  up  the  evidence,  and  present  my 
views  of  the  law  arising  upon  the  facts  in  the 
case,  on  trial.  The  questions  of  fact  involved  in 
the  issue  are  : 

First,  did  the  accused,  or  any  two  of  them,  con 
federate  and  conspire  together,  as  charged  ?  and, 

Second,  did  the  accused,  or  any  of  them,  in 
pursuance  of  such  conspiracy,  and  with  the  in 
tent  alleged,  commit  either  or  all  of  the  several 
acts  specified  ? 

If  the  conspiracy  be  established,  as  laid,  it 
results  that  whatever  was  said  or  done  by  either 
of  the  parties  thereto,  in  the  furtherance  or  ex 
ecution  of  the  common  design,  is  the  declaration 
or  act  of  all  the  other  parties  to  the  conspiracy; 
and  this,  whether  the  other  parties,  at  the  time 
."uch  words  were  uttered  or  such  acts  done  by 
their  confederates,  were  present  or  absent — 
here,  within  the  intrenched  lines  of  your  capi 
tal,  or  crouching  behind  the  intrenched  lines 
of  Richmond,  or  awaiting  the  results  of  their 
murderous  plot  against  their  country,  its  Con 
stitution  and  laws,  across  the  border,  under  the 
shelter  of  the  British  flag. 

The  declared  and  accepted  rule  of  law  in 
cases  of  conspiracy  is  that — 

"In  prosecutions  for  conspiracy  it  is  an  es 
tablished  rule  that  where  several  persons  are 
proved  to  have  combined  together  for  the  same 
illegal  purpose,  any  act  done  by  one  of  the 
party,  in  pursuance  of  the  original  concerted 
plan,  and  in  reference  to  the  common  object,  is, 
in  the  contemplation  of  law  as  well  as  in  sound 
reason,  the  act  of  the  whole  party ;  and,  there 
fore,  the  proof  of  the  act  Avill  be  evidence 
against  any  of  the  others,  who  were  engaged 
in  the  same  general  conspiracy,  without  regard 
to  the  question  whether  the  prisoner  is  proved 
to  have  been  concerned  in  the  particular  trans 
action."  Phillips  on  Evidence,  p.  210. 

The  same  rule  obtains  in  cases  of  treason: 
"If  several  persons  agree  to  levy  war,  some  in 
one  place  and  some  in  another,  and  one  party 
do  actually  appear  in  arms,  this  is  a  levying 
of  war  by  all,  as  well  those  who  were  not  in 
arms  as  those  who  were,  if  it  were  done  in  pur 
suance  of  the  original  concert,  for  those  .who 
made  the  attempt  were  emboldened  by  the  con 
fidence  inspired  by  the  general  concert,  and 
therefore  these  particular  acts  are  in  justice 
imputable  to  all  the  rest."  1  East.,  Pleas  of 
the  Crown,  p.  97 ;  Roscoe,  84. 

In  Ex  parte  Bollman  and  Swartwoul,  4  Cranch, 
126,  Marshall,  Chief  Justice,  rules  :  a  If  war  be 
actually  levied — that  is,  if  a  body  of  men  be 
actually  assembled,  for  the  purpose  of  effect 
ing,  by  force,  a  treasonable  purpose,  all  those 
who  perform  any  part,  however  minute,  or  how 
ever  remote  from  the  scene  of  action,  and  who  are 
actually  leagued  in  the  general  conspiracy,  are 
to  be  considered  as  traitors." 

In  United  States  vs.  Cole  et  al.,  5  McLean,  601, 
Mr.  Justice  McLean  says:  "A  conspiracy  is 
rarely,  if  ever,  proved  by  positive  testimony. 
When  a  crime  of  high  magnitude  is  about  to  be 
perpetrated  by  a  combination  of  individuals, 
they  do  not  act  openly,  but  covertly  and  se 


cretly.  The  purpose  formed  is  known  only  to 
those  who  enter  into  it.  Unless  one  of  the 
original  conspirators  betray  his  companions 
and  give  evidence  against  them,  their  guilt  can 
be  proved  only  by  circumstantial  evidence.  •* 
*  It  is  said  by  some  writers  on  evidence  that 
such  circumstances  are  stronger  than  positive 
proof.  A  witness  swearing  positively,  it  is 
said,  may  misapprehend  the  facts  or  swear 
falsely,  but  that  circumstances  can  not  lie. 

"  The  common  design  is  the  essence  of  the 
charge;  and  this  may  be  made  to  appear  when 
the  defendants  steadily  pursue  the  same  object, 
whether  acting  separately  or  together,  by  com 
mon  or  different  means,  all  leading  to  the  same 
unlawful  result.  And  where  prima  facie  evi 
dence  has  been  given  of  a  combination,  the 
acts  or  confessions  of  one  are  evidence  against 
all.  *  *  It  is  reasonable  that  where  a  body 
of  men  assume  the  attribute  of  individuality, 
whether  for  commercial  business  or  for  the 
commission  of  a  crime,  that  the  association 
should  be  bound  by  the  acts  of  one  of  its  mem 
bers,  in  carrying  out  the  design." 

It  is  a  rule  of  the  law,  not  to  be  overlooked 
in  this  connexion,  that  the  conspiracy  or  agree 
ment  of  the  parties,  or  some  of  them,  to  act  in 
concert  to  accomplish  the  unlawful  act  charged, 
may  be  established  either  by  direct  evidence 
of  a  meeting  or  consultation  for  the  illegal 
purpose  charged,  or  more  usually,  from  the 
very  nature  of  the  case,  by  circumstantial  evi 
dence.  2  Starkie,  232. 

Lord  Mansfield  ruled  that  it  was  not  neces 
sary  to  prove  the  actual  fact  of  a  conspiracy, 
but  that  it  might  be  collected  from  collateral 
circumstances.  Parsoris  Case,  1  W.  Blackstone, 
392. 

"If,"  says  a  great  authority  on  the  law  of 
evidence,  "on  a  charge  of  conspiracy,  it  ap 
pear  that  two  persons  by  their  acts  are  pursu 
ing  the  same  object,  and  often  by  the  same 
means,  or  one  performing  part  of  the  act,  and 
the  other  completing  it,  for  the  attainment  of 
the  same  object,  the  jury  may  draw  the  con 
clusion  there  is  a  conspiracy.  If  a  conspiracy 
be  formed,  and  a  person  join  in  it  afterward, 
he  is  equally  guilty  with  the  original  conspir 
ators."  Roscoe,  415. 

"  The  rule  of  the  admissibility  of  the  acts 
and  declarations  of  any  one  of  the  conspira 
tors,  said  or  done  in  furtherance  of  the  com 
mon  design,  applies  in  cases  as  well  where 
only  part  of  the  conspirators  are  indicted,  or 
upon  trial,  as  where  all  are  indicted  and  upon 
trial.  Thus,  upon  an  indictment  for  murder, 
if  it  appear  that  others,  together  with  the  pris 
oner,  conspired  to  commit  the  crime,  the  act  of 
one,  done  in  pursuance  of  that  intention,  will 
be  evidence  against  the  rest."  2d  Starkie,  237. 

They  are  all  alike  guilty  as  principals. 
Commonwealth  vs.  Knrtpp,  9  Pickering,  496  ;  10 
Pickering,  477 ;  6  Term  Reports.  528 ;  11  East.,  584. 

What  is  the  evidence,  direct  and  circumstan 
tial,  that  the  accused,  or  either  of  them,  to 
gether  with  John  H.  Surratt,  John  Wilkes 
Booth,  Jefferson  Davis,  George  N.  Sanders,  Bev- 
erley  Tucker,  Jacob  Thompson,  William  C. 
Cleary,  Clement  C.  Clay,  George  Harper  and 
j  George  Young,  did  combine,  confederate,  and 


ARGUMENT    OF   JOHN   A.    BINGHAM. 


373 


conspire,  in  aid  of  the  existing  rebellion,  as  • 
charged,  to  kill  and  murder,  within  the  mili 
tary  department  of  Washington,  and  within 
the  fortified  and  intrenched  lines  thereof, 
Abraham  Lincoln,  late,  and,  at  the  time  of  the  j 
said  combining,  confederating  and  conspiring,  ! 
President  of  the  United  States  of  America,  and  ; 
Commnnder-in-Chief  of  the  army  and  navy ; 
thereof;  Andrew  Johnson,  Vice-President  of  j 
the  United  States;  William  H.  Seward,  Secre 
tary  of  State  of  the  United  States;  and  Ulys 
ses  S.  Grant,  Lieutenant-General  of  the  armies 
thereof,  and  then  in  command,  under  the  direc 
tion  of  the  President? 

The  time,  as  laid  in  the  charge  and  specifi 
cation,  when  this  conspiracy  was  entered  into, 
is  immaterial,  so  that  it  appear  by  the  evi 
dence  that  the  criminal  combination  and 
agreement  were  formed  before  the  commis 
sion  of  the  acts  alleged.  That  Jefferson  Davis, 
one  of  the  conspirators  named,  was  the  ac 
knowledged  chief  and  leader  of  the  existing 
rebellion  against  the  Government  of  the  United 
States,  and  that  Jacob  Thompson,  George  N. 
Sanders,  Clement  C.  Clay,  Beverley  Tucker, 
and  others  named  in  the  specification,  were  his 
duly  accredited  and  authorized  agents,  to  act 
in  the  interests  of  said  rebellion,  are  facts  es 
tablished  by  the  testimony  in  this  case  beyond 
all  question.  That  Davis,  as  the  leader  of  said 
rebellion,  gave  to  those  agents,  then  in  Can 
ada,  commissions  in  blank,  bearing  the  official 
signature  of  his  war  minister,  James  A.  Seddon, 
to  be  by  them  filled  up  and  delivered  to  such 
agents  as  they  might  employ  to  act  in  the 
interests  of  the  rebellion  within  the  United 
States,  and  intended  to  be  a  cover  and  pro 
tection  for  any  crimes  they  might  therein 
commit  in  the  service  of  the  rebellion,  is  also 
a  fact  established  here,  and  which  no  man  can 
gainsay.  Who  doubts  that  Kennedy,  whose 
confession,  made  in  view  of  immediate  death, 
as  proved  here,  was  commissioned  by  those  ac 
credited  agents  of  Davis  to  burn  the  city  of 
New  York  ?  That  he  was  to  have  attempted  it 
on  the  night  of  the  Presidential  election,  and 
that  he  did,  in  combination  with  his  confed 
erates,  set  fire  to  four  hotels  in  the  city  of  New 
York  on  the  night  of  the  25th  of  November 
last?  Who  doubts  that,  in  like  manner,  in  the 
interests  of  the  rebellion,  and  by  the  authority 
of  Davis,  these,  his  agents,  also  commissioned 
Bennett  H.  Young  to  commit  arson,  robbery 
and  the  murder  of  unarmed  citizens  in  St.  Al- 
bans,  Vermont?  Who  doubts,  upon  the  testi 
mony  shown,  that  Davis,  by  his  agents,  delib 
erately  adopted  the  system  of  starvation  for 
the  murder  of  our  captive  soldiers  in  his 
hands,  or  that,  as  shown  by  the  testimony,  he 
sanctioned  the  burning  of  hospitals  and  steam 
boats,  the  property  of  private  persons,  and 
paid  therefor,  from  his  stolen  treasure,  the 
sum  of  thirty-five  thousand  dollars  in  gold  ? 
By  the  evidence  of  Godfrey  Joseph  Hyams  it 
is  proved  that  Thompson — the  agent  of  Jeffer 
son  Davis — paid  him  money  for  the  service  he 
rendered  in  the  infamous  and  fiendish  project 
of  importing  pestilence  into  our  camps  and 
cities,  to  destroy  the  lives  of  citizens  and 
soldiers  alike,  and  into  the  house  of  the  Presi 


dent  for  the  purpose  of  destroying  his  life.  It 
may  be  said,  and  doubtless  will  be  said,  by  the 
pensioned  advocates  of  this  rebellion,  that 
Hyams,  being  infamous,  is  not  to  be  believed. 
It  is  admitted  that  he  is  infamous,  as  it  must 
be  conceded  that  any  man  is  infamous  who 
either  participates  in  such  a  crime  or  at 
tempts  in  anywise  to  extenuate  it.  But  it  will 
be  observed  that  Hyams  is  supported  by  the 
testimony  of  Mr.  Sanford  Conover,  who  heard 
Blackburn  and  the  other  rebel  agents  in 
Canada  speak  of  this  infernal  project,  and  by 
the  testimony  of  Mr.  Wall,  the  well-known 
auctioneer  of  this  city,  whose  character  is  un 
questioned,  that  he  received  this  importation 
of  pestilence  (of  course  without  any  knowledge 
of  the  purpose),  and  that  Hyams  consigned 
the  goods  to  him  in  the  name  of  J.  W.  Harris, 
a  fact  in  itself  an  acknowledgment  of  guilt; 
and  that  he  received,  afterward,  a  letter  from 
Harris,  dated  Toronto,  Canada  West,  December 
1,  1864,  wherein  Harris  stated  that  he  had 
not  been  able  to  come  to  the  States  since  hia 
return  to  Canada,  and  asked  for  an  account 
of  the  sale.  He  identifies  the  Godfrey  Joseph 
Hyams,  who  testified  in  court  as  the  J.  W. 
Harris  who  imported  the  pestilence.  The  very 
transaction  shows  that  Hyams'  statement  is 
truthful.  He  gives  the  names  of  the  parties 
connected  with  this  infamy  (Clement  C.  Clay; 
Dr.  Blackburn,  Rev.  Dr.  Stuart  Robinson,  J.  C. 
Holcombe,  all  refugees  from  the  Confederacy 
in  Canada),  and  states  that  he  gave  Thompson 
a  receipt  for  the  fifty  dollars  paid  to  him,  and 
that  he  was  by  occupation  a  shoemaker;  in 
none  of  which  facts  is  there  an  attempt  to  dis 
credit  him.  It  is  not  probable  that  a  man  in 
his  position  in  life  would  be  able  to  buy  five 
trunks  of  clothing,  ship  them  all  the  way  from 
Halifax  to  Washington,  and  then  order  them  to 
be  sold  at  auction,  without  regard  to  price, 
solely  upon  his  own  account.  It  is  a  matter 
of  notoriety  that  a  part  of  his  statement  is 
verified  by  the  results  at  Newbern,  North  Car 
olina,  to  which  point,  he  says,  a  portion  of  the 
infected  goods  were  shipped,  through  a  sutler, 
the  result  of  which  was  that  nearly  two  thou 
sand  citizens  and  soldiers  died  there,  about 
that  time,  with  the  yellow  fever. 

That  the  rebel  chief,  Jefferson  Davis,  sanc 
tioned  these  crimes,  committed  and  attempted 
through  the  instrumentality  of  his  accredited 
agents  in  Canada — Thompson,  Clay,  Tucker, 
Sanders,  Cleary,  etc. — upon  the  persons  and 
property  of  the  people  of  the  North,  there  is 
positive  proof  on  your  record.  The  letter 
brought  from  Richmond,  and  taken  from  the 
archives  of  his  late  pretended  Government 
there,  dated  February  11,  1865,  and  addressed 
to  him  by  a  late  rebel  Senator  from  Texas,  W. 
S.  Oldham,  contains  the  following  significant 
words:  "When  Senator  Johnson,  of  Missouri, 
and  myself  waited  on  you,  a  few  days  since,  in 
relation  to  the  project  of  annoying  and  har- 
rassing  the  enemy,  by  means  of  burning  their 
shipping,  towns,  etc.,  there  were  several  re 
marks  made  by  you  upon  the  subject,  which  I 
was  not  fully  prepared  to  answer,  but  which, 
upon  subsequent  conference  with  parties  pro 
posing  the  enterprise,  I  find  can  not  apply 


374 


THE    CONSPIRACY  TRIAL. 


as  objections  to  the  scheme.  First,  the  'com-  : 
bustible  materials'  consist  of  several  prepara 
tions,  and  not  one  alone,  and  can  be  used  j 
without  exposing  the  party  using  them  to  the  ! 
least  danger  of  detection  whatever.  *  *  j 

*  Second,  there  is  no  necessity  for  sending  i 
persons  in  the  military  service  into  the  enemy's 
country,  but  the  work  may  be  done  by  agents. 
*  *  *  I  have  seen  enough  of  the  ef 
fects  that  can  be  produced  to  satisfy  me  that 
in  most  cases,  without  any  danger  to  the  par 
ties  engaged,  and,  in  others,  but  very  slight, 
we  can,  first,  burn  every  vessel  that  leaves  a  I 
foreign  port  for  the  United  States ;  second,  ! 
we  can  burn  every  transport  that  leaves  the  | 
harbor  of  New  York,  or  other  Northern  port, 
with  supplies  for  the  armies  of  the  enemy  in 
the  South;  third,  burn  every  transport  and 
gunboat  on  the  Mississippi  river,  as  well  as 
devastate  the  country  of  the  enemy,  and  fill 
his  people  with  terror  and  consternation. 
For  the  purpose  of  satisfying 
your  mind  upon  the  subject,  I  respectfully, 
but  earnestly,  request  that  you  will  give  an 
interview  with  General  Harris,  formerly  a 
member  of  Congress  from  Missouri,  who,  I 
think,  is  able,  from  conclusive  proofs,  to  con 
vince  you  that  what  I  have  suggested  is  per 
fectly  feasible  and  practicable." 

No  one  can  doubt,  from  the  tenor  of  this 
letter,  that  the  rebel  Davis  only  wanted  to  be 
satisfied  that  this  system  of  arson  and  mur 
der  could  be  carried  on  by  his  agents  in  the 
North  successfully  and  without  detection. 
With  him  it  was  not  a  crime  to  do  these  acts, 
but  only  a  crime  to  be  detected  in  them. 
But  Davis,  by  his  indorsement  on  this  letter, 
dated  the  20th  of  February,  1865,  bears  wit 
ness  to  his  own  complicity  and  his  own  in 
famy  in  this  proposed  work  of  destruction 
and  crime  for  the  future,  as  well  as  to  his 
complicity  in  what  had  before  been  attempted 
without  complete  success.  Kennedy,  with  his 
confederates,  had  failed  to  burn  the  city  of 
New  York.  "The  combustibles"  which  Ken 
nedy  had  employed  were,  it  seems,  defective. 
This  was  "a  difficulty  to  be  overcome."  Neither 
had  he  been  able  to  consummate  the  dreadful 
work  without  subjecting  himself  to  detection. 
This  was  another  "difficulty  to  be  overcome." 
Davis,  on  the  20th  of  February,  1865,  indorsed 
upon  this  letter  these  words:  "Secretary  of 
State,  at  his  convenience,  see  General  Harris, 
and  learn  what  plan  he  has  for  overcoming 
the  difficulties  heretofore  experienced.  J.  D" 

This  indorsement  is  unquestionably  proved 
to  be  the  handwriting  of  Jefferson  Davis,  and 
it  bears  witness  on  its  face  that  the  monstrous 
proposition  met  his  approval,  and  that  he  de 
sired  his  rebel  Secretary  of  State,  Benjamin, 
to  see  General  Harris  and  learn  how  to  over 
come  the  difficulty  heretofore  experienced,  to  wit: 
the  inefficiency  of  "the  combustible  materials'' 
that  had  been  employed,  and  the  liability  of 
its  agents  to  detection.  After  this,  who  will 
doubt  that  he  had  endeavored,  by  the  hand  of 
incendiaries,  to  destroy  by  fire  the  property 
and  lives  of  the  people  of  the  North,  and  there 
by  "fill  them  with  terror  and  consternation;" 
that  he  knew  his  agents  had  been  unsuccess 


ful;  that  he  knew  his  agents  had  been  detected 
in  their  villainy  and  punished  for  their  crime; 
that  he  desired,  through  a  more  perfect  "  chem 
ical  preparation,"  by  the  science  and  skill  of 
Professor  McCulloch,  to  accomplish  successfully 
what  had  before  been  unsuccessfully  attempted? 
The  intercepted  letter  of  his  agent,  Clement 
C.  Clay,  dated  St..  Catharine's,  Canada  West, 
November  1,  1864,  is  an  acknowledgment  and 
confession  of  what  they  had  attempted,  and  a 
suggestion  made  through  J.  P.  Benjamin,  rebel 
Secretary  of  State,  of  what  remained  to  be 
done,  in  order  to  make  the  "chemical  prepara 
tions'"  efficient.  Speaking  of  this  Bennett  H. 
Young,  he  says  :  "You  have  doubtless  learned 
through  the  press  of  the  United  States,  of  the 
raid  on  St.  Alban's  by  about  twenty-five  Con 
federate  soldiers,  led  by  Lieutenant  Bennett 
II.  Young  ;  of  their  attempt  and  failure  to  burn 
the  town;  of  their  robbery  of  three  banks  there 
of  the  aggregate  amount  of  about  two  hundred 
thousand  dollars;  of  their  arrest  in  Canada, 
by  United  States  forces;  of  their  commitment 
and  the  pending  preliminary  trial."  He  makes 
application,  in  aid  of  Young  and  his  associates, 
for  additional  documents,  showing  that  they 
acted  upon  the  authority  of  the  Confederate 
States  Government,  taking  care  to  say,  how 
ever,  that  he  held  such  authority  at  the  time, 
but  that  it  ought  to  be  more  explicit,  so  far  as 
regards  the  particular  acts  complained  of.  He 
states  that  he  met  Young  at  Halifax  in  May, 
1864,  who  developed  his  plans  for  retaliation 
on  the  enemy;  that  he,  Clay,  recommended  him 
to  the  rebel  Secretary  of  war;  that  after  this, 
"Young  was  sent  back  by  the  Secretary  of  Wrar 
with  a  commission  as  Second  Lieutenant  to  exe 
cute  his  plans  and  purposes,  but  to  report  to 
Hon.  —  —  and  myself."  Young  afterward 
"proposed  passing  through  New  England,  burn 
ing  some  towns  and  robbing  them  of  whatever 
he  could  convert  to  the  use  of  the  Confederate 
Government.  This  I  approved  as  justifiable 
retaliation.  He  attempted  to  burn  the  town  of 
St.  Alban's,  Vermont,  and  would  have  succeed 
ed  but  for  the  failure  of  the  chemical  preparation 
with  which  he  was  armed.  He  then  robbed  the 
banks  of  funds  amounting  to  over  two  hundred 
thousand  dollars.  That  he  was  not  prompted 
by  selfish  or  mercenary  motives,  I  am  as  well 
satisfied  as  I  am  that  he  is  an  honest  man.  He 
assured  me  before  going  that  his  effort  would  be 
to  destroy  towns  and  farm-houses,  but  not  to 
plunder  or  rob;  but  he  said  if,  after  firing  a 
town,  he  saw  he  could  take  funds  from  a  bank 
or  any  house,  and  thereby  might  inflict  injury 
upon  the  enemy  and  benefit  his  own  Govern 
ment,  he  would  do  so.  He  added  most  emphat 
ically,  that  whatever  he  took  should  be  turned 
over  to  the  Government  or  its  representatives  in 
foreign  lands.  My  instructions  to  him  were,  to 
destroy  whatever  was  valuable;  not  to  stop  to 
rob,  but  if,  after  firing  a  town,  he  could  seize  and 
carry  off  money  or  treasury  or  bank  notes,  he 
might  do  so  upon  condition  that  they  were  deliv 
ered  to  the  proper  authorities  of  the  Confederate 
States" — that  is,  to  Clay  himself. 

When  he  wrote  this  letter,  it  seems  that  this 
accredited  agent  of  Jefferson  Davis  was  as 
strongly  impressed  with  the  usurpation  and  des- 


ARGUMENT   OF   JOHN   A.    BINGHAM. 


375 


Mr.  Lincoln's  administration  as  some  i  ing  at  the  very  luxirtf  blood  of  those  who  seek 
vacates  of  his  aiders  and  abettors  seem  )  to  enchain  her  in  slavery.     I  consider  nothing 


polism  of 

of  the  adv 

to  be  at  this   day;  and  he    indulges  in  the  fol-  {dishonorable  having  such  a  tendency. 


All  I  ask 


lowing  statement:     "  All  that   a   large  portion   of   you   is,   to  favor  me  by    granting   me   the 
of  the  Northern  people,  especially  in  the  North-   necessary  papers,  etc.,  to  travel  on.     *     *     * 
west,   want  to  resist  the  oppressions  of  the  des-  \  I  am  perfectly  familiar  with  the  North,  and  feel  con- 

'  fident  that  I  can  execute  anything  I  undertake. 
I  was  in  the  raid  last  June  in  Kentucky,  under 


potism  at   Washington,   is  a   leader.     They    are 
ripe  for  resistance,  and  it  may  come  soon  after  the 


General  John  H.  Morgan ; 


was  taken 


Presidential    election.     At    all    events,     it    must 

come,  if  our  armies  are  not  overcome,  or  de-  i  prisoner  ;  *  *  *  escaped  from  them  by 
stroyed,  or  dispersed.  No  people  of  the  Anglo-  i  dressing  myself  in  the  garb  of  a  citizen. 
Saxon  blood  can  long  endure  the  usurpations  \  *  *  *  I  went  through  to  the  Canadas,  from, 
and  ti/ranmes  of  Lincoln."  Clay  does  not  sign  j  whence,  by  the  assistance  of  ColonelJ.  P.  Holcomb, 
the  dispatch,  but  indorses  the  bearer  of  it  as  1  1  succeeded  in  working  my  wa,y  around  and 
a  person  who  can  identify  him  and  give  his  I  through  the  blockade.  *  *  *  I  should  like 


name.  The  bearer  of  that  letter  was  the  wit 
ness,  Richard  Montgomery,  who  saw  Clay  write 
a  portion  of  the  letter,  and  received  it  from  his 
hands,  and  subsequently  delivered  it  to  the 
Assistant  Secretary  of  War  of  the  United 
States,  Mr.  Dana.  That  the  letter  is  in  Clay's 
handwriting,  is  clearly  proved  by  those  famil 
iar  with  it.  Mr.  Montgomery  testifies  that  he 
was  instructed  by  Clay  to  deliver  this  letter  to 
Benjamin,  the  Rebel  Secretary  of  State,  if  he 
could  get  through  to  Richmond,  and  to  tell  him 
what  names  to  put  in  the  blanks. 

This  letter  leaves  no  doubt,  if  any  before 
existed  in  the  mind  of  any  one  who  had  read 
the  letter  of  Oldharn,  and  Davis'  indorsement 


thereon,  that 
"  combustible 


the  chemical  preparations"  and 
materials"    had    been   tried  and 


had  failed,  and  it  had  become  a  matter  of  great 
moment  and  concern  that  they  should  be  so 
prepared  as,  in  the  words  of  Davis,  "to  over 
come  the  difficulties  heretofore  experienced;" 
that  is  to  say,  complete  the  work  of  destruc 
tion,  and  secure  the  perpetrators  against  per 
sonal  injury  or  detection  in  the  performance 


of  it. 

It  only  remains 


to  be  seen  whether  Davis, 


the  procurer  of  arson  and  of  the  indiscrimi 
nate  inurdeFof  the  innocent  and  unoffending, 
necessarily  resultant  therefrom,  was  capable 
also  of  endeavoring  to  procure,  and  in  fact 
did  procure,  the  murder,  by  direct  assassina 
tion,  of  the  President  of  the  United  States 
and  others  charged  with  the  duty  of  main 
taining  the  Government  of  the  United  States, 
and  of  suppressing  the  rebellion  in  which  this 
arch-traitor  and  conspirator  was  engaged. 

The  official  papers  of  Davis,  captured  under 
the  guns  of  our  victorious  army  in  his  rebel 
capital,  identitied  beyond  question  or  shadow 
of  doubt,  and  placed  upon  your  record,  together 
with  the  declarations  and  acts  of  his  co-con 
spirators  and  agents,  proclaim  to  all  the  world 
that  he  was  capable  of  attempting  to  accom 
plish  his  treasonable  procuration  of  the  mur 
der  of  the  late  President,  and  other  chief  of 
ficers  of  the  United  States,  by  the  hands  of 
hired  assassins. 

In  the  fall  of  1864,  Lieutenant  W.  Alston 
addresses  to  "His  Excellency"  a  letter,  now 
before  the  Court,  which  contains  the  following 


words 
I  now 


offer  you   my  services,  and   if  you 


will  favor  me  in  my  designs,  I  will  proceed,  as 
soon  as  my  health  will  permit,  to  rid  my  coun 
try  of  some  of  her  deadliest  enemies,  by  strik- 


to  have  a  personal  interview  with  you  in  order 
to  perfect  the  arrangements  before  starting." 

Is  there  any  room  to  doubt  that  this  was  a 
proposition  to  assassinate,  by  the  hand  of  this 
man  and  his  associates,  such  persons  in  the 
North  as  he  deemed  the  "  deadliest  enemies  " 
of  the  rebellion  ?  The  weakness  of  the  man 
who  for  a  moment  can  doubt  that  such  was  the 
proposition  of  the  writer  of  this  letter,  is  cer 
tainly  an  object  of  commiseration.  What  had 
Jeiferson  Davis  to  say  to  this  proposed  assas 
sination  of  the  "deadliest  enemies  "  in  the  North 
of  his  great  treason  ?  Did  the  atrocious  sug 
gestion  kindle  in  him  indignation  against  the 
villain  who  offered,  with  his  own  hand,  to 
strike  the  blow?  Not  at  all.  On  the  contrary, 
he  ordered  his  private  secretary,  on  the  29th  of 
November,  1864,  to  indorse  upon  the  letter 
these  words  :  "  Lieutenant  W.  Alston  ;  accom 
panied  raid  into  Kentucky,  and  was  captured, 
but  escaped  into  Canada,  from  whence  he  found 
his  way  back.  Now  offers  his  services  to  rid 
the  country  of  some  of  its  deadliest  enemies; 
asks  for  papers,  etc.  Respectfully  referred,  by 
direction  of  the  President,  to  the  honorable 
Secretary  of  War."  It  is  also  indorsed  for  at 
tention,  "By  order.  (Signed)  J.  A.  Campbell. 
Assistant  Secretary  of  War." 

Note  the  fact  in  this  connection,  that  Jeffer 
son  Davis  himself,  as.  well  as  his  subordinates, 
had,  before  the  date  of  this  indorsement,  con 
cluded  that  Abraham  Lincoln  was  "  the  dead 
liest  enemy  "  of  the  rebellion.  You  hear  it  in 
the  rebel  camp  in  Virginia  in  1863,  declared 
by  Booth,  then  and  there  present,  and  assented 
to  by  rebel  officers,  that  "  Abraham  Lincoln 
must  be  killed."  You  bear  it  in  that  slaughter- 
pen  in  Georgia,  Andersonville,  proclaimed  » 
among  rebel  officers,  who,  by  the  slow  torture 
of  starvation,  inflicted  cruel  and  untimely 
death  on  ten  thousand  of  your  defenders,  cap 
tives  in  their  hands  —  whispering,  like  demons, 
their  horrid  -purpose,  "Abraham  Lincoln  must 
be  killed."  And  in  Canada,  the  accredited 
agents  of  Jefferson  Davis,  as  early  as  October, 
1864,  and  afterward,  declared  that  "  Abraham 
Lincoln  must  be  killed  "  if  his  re-election  could 
riot  be  prevented.  These  agents  in  Canada,  on 
the  13th  of  October,  1864,  delivered,  in  cipher, 
to  be  transmitted  to  Richmond  by  Richard  Mont 
gomery,  the  witness,  whose  reputation  is  un 
challenged,  the  following  communication: 

"  OCTOBER  13,  1864. 

"We  again  urge  the  immense  necessity  of 
our  gaining  immediate  advantages.  Strain 


376 


THE    CONSPIRACY   TRIAL. 


every  nerve  for  victory.  We  now  look  upon 
the  re-election  of  Lincoln  in  November  as  al 
most  certain,  and  we  need  to  whip  his  hirelings 
to  prevent  it.  Besides,  with  Lincoln  re-elected, 
and  his  armies  victorious,  we  need  not  hope 
even  for  recognition,  much  less  the  help  men 
tioned  in  our  last.  Holcomb  will  explain  this. 
Those  figures  of  the  Yankee  armies  are  correct 
to  a  unit.  Our  friends  shall  be  immediately  set 
to  work  as  you  direct." 

To  which  an  official  reply,  in  cipher,  was  de- 
,livered  to  Montgomery  by  an  agent  of  the  state 
department  in  Richmond,  dated  October  19, 
18G4,  as  follows  : 

"  Your  letter  of  the  13th  instant  is  at  hand. 
There  is  yet  time  enough  to  colonize  many  voters 
before  November.  A  blow  will  shortly  be 
stricken  here.  It  is  not  quite  time.  General 
Longstreet  is  to  attack  Sheridan  without  delay, 
and  then  move  north  as  far  as  practicable 
toward  unprotected  points.  This  will  be  made 
instead  of  movement  before  mentioned.  He 
will  endeavor  to  assist  the  Republicans  in  col 
lecting  iheir  ballots.  Be  watchful  and  assist  him." 

On  the  very  day  of  the  date  of  this  Richmond 
dispatch  Sheridan  was  attacked,  with  what 
success  history  will  declare.  The  Court  will 
not  fail  to  notice  that  the  re-election  of  Mr.  Lin 
coln  is  to  be  prevented  if  possible,  by  any  and 
every  means.  Nor  will  they  fail  to  notice  that 
Holcomb  is  to  "explain  this  " — the  same  person 
who,  in  Canada,  was  the  friend  and  advisor  of 
Alston,  who  proposed  to  Davis  the  assassination 
of  the  "deadliest  enemies"  of  the  rebellion. 

In  the  dispatch  of  the  13th  of  October,  which 
was  borne  by  Montgomery,  and  transmitted  to 
Richmond  in  October  last,  you  will  find  these 
words  :  "  Our  friends  shall  be  immediately  set 
to  work  as  you  direct."  Mr.  Lincoln  is  the  sub 
ject  of  that  dispatch.  Davis  is  therein  notified 
that  his  agents  in  Canada  look  upon  the  re 
election  .of  Mr.  Lincoln  in  November  as  almost 
certain.  In  this  connection  he  is  assured  by 
those  agents,  that  the  friends  of  their  cause  are 
to  be  set  to  work  as  Davis  had  directed.  The 
conversations,  which  are  proved  by  witnesses 
whose  character  stands  unimpeached,  disclose 
what  "work"  the  "friends"  were  to  do  under 
tJie  direction  of  Davis  himself.  Who  were  these 
"friends,"  and  what  was  "  the  work  "  which 
his  agents,  Thompson,  Clay,  Tucker  and  San 
ders  had  been  directed  to  set  them  at?  Let 
Thompson  answer  for  himself.  In  a  conversa 
tion  with  Richard  Montgomery  in  the  summer 
of  1864,  Thompson  said  that  he  had  his  friends, 
confederates,  all  over  the  Northern  States,  who 
were  ready  and  willing  to  go  any  lengths  for 
the  good  of  the  cause  of  the  South,  and  he 
could  at  any  time  have  the  tyrant  Lincoln,  or  any 
other  of  his  advisers  that  he  chose,  put  out  of  his 
way ;  that  they  would  not  consider  it  a  crime 
Avhen  done  for  the  cause  of  the  Confederacy." 
This  conversation  was  repeated  by  the  witness 
in  the  summer  of  1864  to  Clement  C.  Clay,  who 
immediately  stated:  "That  is  so;  we  are  all 
devoted  to  our  cause  and  ready  to  go  any 
length — to  do  anj'thing  under  the  sun." 

At  and  about  the  time  that  these  declarations 
of  Clay  and  Thompson  were  made,  Alston,  who 
made  the  proposition,  as  we  have  seen,  to  Davis, 


to  be  furnished  with  papers  to  go  North  and  rid 
the  Confederacy  of  some  of  its  "  deadliest  ene 
mies,"  was  in  Canada.  He  was  doubtless  one 
of  the  "friends"  referred  to.  As  appears  by 
the  testimony  of  Montgomery,  Payne,  the  pris 
oner  at  your  bar,  was  about  that  time  in  Canada, 
and  was  seen  standing  by  Thompson's  door, 
engaged  in  a  conversation  with  Clay,  between 
whom  and  the  witness  some  words  were  inter 
changed,  when  Clay  stated  he  (Payne)  was  one 
of  their  friends — "we  trust  him."  It  is  proved 
beyond  a  shadow  of  doubt  that  in  October  last 
John  Wilkes  Booth,  the  assassin  of  the  Presi 
dent,  was  also  in  Canada,  and  upon  intimate 
terms  with  Thompson,  Clay,  Sanders,  and  other 
rebel  agents.  Who  can  doubt,  in  the  light  of 
the  events  which  have  transpired,  that  he  was 
one  of  the  "friends"  to  be  "set  to  work,"  as 
Davis  had  already  directed — not,  perhaps,  as 
yet  to  assassinate  the  President,  but  to  do  that 
other  work  which  is  suggested  in  the  letter  of 
Oldham,  indorsed  by  Davis  in  his  own  hand, 
and  spread  upon  your  record — the  work  of  the 
secret  incendiary,  which  was  to  "  fill  the  people 
of  the  North  with  terror  and  consternation." 
The  other  "work"  spoken  of  by  Thompson — put 
ting  the  tyrant  Lincoln  and  any  of  his  advisers  out 
of  the  way,  was  work  doubtless  to  be  commenced 
only  after  the  re-election  of  Mr.  Lincoln,  which 
they  had  already  declared  in  their  dispatch  to 
their  employer,  Davis,  was  with  them  a  foregone 
conclusion.  At  all  events,  it  was  not  until  after 
the  Presidential  election  in  November  that  Als 
ton  proposed  to  Davis  to  go  North  on  the  work 
of  assassination  ;  nor  was  it  until  after  that 
election  that  Booth  was  found  in  possession  of 
the  letter  which  is  in  evidence,  and  which  dis 
closes  the  purpose  to  assassinate  the  President. 
Being  assured,  however,  when  Booth  was  with 
them  in  Canada,  as  they  had  already  declared 
in  their  dispatch,  that  the  re-election  of  Mr. 
Lincoln  was  certain,  in  which  event  there  would 
be  no  hope  for  the  Confederacy,  tlfey  doubtless 
entered  into  the  arrangement  with  Booth  as  one 
of  their  "  friends,"  that  as  soon  as  that  fact  was 
determined  he  should  go  "to  work,"  and  as  soon 
as  might  be  "  rid  the  Confederacy  of  the  tyrant 
Lincoln  and  of  his  advisers." 

That  these  persons  named  upon  your  record, 
Thompson,  Sanders,  Clay,  Cleary  and  Tucker, 
were  the  agents  of  Jefferson  Davis,  is  another 
fact  established  in  this  case  beyond  a  doubt. 
They  made  affidavit  of  it  themselves,  of  record 
here,  upon  the  examination  of  their  "friends," 
charged  with  the  raRl  upon  St.  Albans.  before 
Judge  Smith,  in  Ciinada.  It  is  in  evidence, 
also,  by  the  letter  of  Clay,  before  referred  to. 

The  testimony,  to  which  I  have  thus  briefly 
referred,  shows,  by  the  letter  of  his  agents,  of 
the  13th  of  October,  that  Davis  had  before  di 
rected  those  agents  to  set  his  friends  to  work. 
By  the  letter  of  Clay  it  seems  that  his  direc 
tion  had  been  obeyed,  and  his  friends  had  been 
set  to  work,  in  the  burning  and  robbery  and 
murder  at  St.  Albans,  in  the  attempt  to  burn 
the  city  of  New  York,  and  in  the  attempt  to  in 
troduce  pestilence  into  this  capital  and  into 
the  house  of  the  President.  It  having  ap 
peared,  by  .the  letter  cf  Alston,  and  the  in 
dorsement  thereon,  that  Davis  had  in  Novem- 


ARGUMENT   OF   JOHN    A.    BINGHAM. 


377 


her  entertained  the  proposition  of  sending 
agents,  that  is  to  say,  "  friends,"  to  the  North, 
to  not  only  "spread  terror  and  consternation 
among  the  people"  by  means  of  his  "chemical 


preparations,"  but  also,  in  the  words  of  that   that  the  whole  work  had  not  been  done,"  and 


letter,  "  to  strike,"  by  the  hands  of  assassins, 
"at  the  heart's  blood"  of  the  deadliest  enemies 
in  the  North  to  the  confederacy  of  traitors;  it 
lias  also  appeared  by  the  testimony  of  many 
respectable  witnesses,  among  others  the  attor 
neys  who  represented  the  people  of  the  United 
States  and  the  State  of  Vermont,  in  the  prelim 
inary  trial  of  the  raiders  in  Canada,  that  Clay, 
Thompson,  Tucker,  Sanders  and  Cleary  de 
clared  themselves  the  agents  of  the  Confeder 
acy.  It  also  clearly  appelfcs  by  the  corres 
pondence  referred  to,  and  the  letter  of  Clay, 
that  they  were  holding,  and  at  any  time  able 
to  command,  blank  commissions  from  Jefferson 
Davis  to  authorize  their  friends  to  do  whatever- 
work  they  appointed  them  to  do,  in*the  inter 
ests  of  the  rebellion,  by  the  destruction  of  life 
and  property  in  the  North. 

If  a  prima  facie  case  justifies,  as  we  have 
seen  by  the  law  of  evidence  it  does,  the  intro 
duction  of  all  declarations  and  acts  of  any  of 
the  parties  to  a  conspiracy,  uttered  or  done  in 
the  prosecution  of  the  common  design,  as  evi 
dence  against  all  the  rest,  it  results,  that  what 
ever  was  said  or  done  in  furtherance  of  the 
common  design,  after  this  month  of  October, 
1864,  by  either  of  these  agents  in  Canada,  is 
evidence  not  only  against  themselves,  but 
against  Davis  as  well,  of  his  complicity  with 
them  in  the  conspiracy. 

Mr.  Montgomery  testifies  that  he  met  Jacob 
Thompson  in  January,  at  Montreal,  when  he 
said  that  "a  proposition  had  been  made  to  him 
to  rid  the  world  of  the  tyrant  Lincoln,  Stanton, 
Grant,  and  some  others ;  that  he  knew  the  men 
who  had  made  the  proposition  were  bold,  dar 
ing  men,  able  to  execute  what  they  undertook ; 
that  he  himself  was  in  favor  of  the  proposition, 
but  had  determined  to  defer  his  answer  until 
he  had  consulted  his  government  at  Richmond  ; 
that  he  was  then  only  awaiting  their  approval. ' 
This  was  about  the  middle  of  January,  and 
consequently  more  than  a  month  after  Alston 
had  made  his  proposition  direct  to  Davis,  in 
writing,  to  go  North  and  rid  their  Confederacy 
of  some  of  its  "deadliest  enemies."  It  was  at 
the  time  of  this  conversation  that  Payne,  the 
prisoner,  was  seen  by  the  witness  standing  at 
Thompson's  door  in  conversation  with  Clay. 
This  witness  also  shows  the  intimacy  between 
Thompson,  Clay,  Cleary,  Tucker,  and  Sanders. 

A  few  days  after  the  assassination  of  the 
President,  Beverley  Tucker  said  to  this  witness 
"that  President  Lincoln  deserved  his  death 
long  ago;  that  it  was  a  pity  he  didn't  have  it 
long  ago,  and  it  was  too  bad  that  the  boys  had 
not  been  allowed  to  act  when  they  wanted  to." 

This  remark  undoubtedly  had  reference  to 
the  propositions  made  in  the  fall  to  Thompson, 
and  also  to  Davis,  to  rid  the  South  of  its  dead 
liest  enemies  by  their  assassination.  Cleary, 
who  was  accredited  by  Thompson  as  his  confi 
dential  agent,  also  stated  to  this  witness  that 
Booth  wns  one  of  the  party  to  whom  Thompson 
had  referred  in  the  conversation  in  January,  in 


which  he  said  he  knew  the  men  who  were  ready 
to  rid  the  world  of  the  tyrant  Lincoln,  and  of 
Stanton  and  Grant.  Cleary  also  said,  speak 
ing  of  the  assassination,  "  that  it  was  a  pity 


added,  "  they  had  better  look  out — we  are'  not 
done  yet;"  manifestly  referring  to  the  state 
ment  made  by  his  employer,  Thompson,  before 
in  the  summer,  that  not  only  the  tyrant  Lin 
coln,  but  Stanton  and  Grant,  and  others  of  his 
advisers,  should  be  put  out  of  the  way.  Cleary 
also  stated  to  this  witness  that  Booth  had  vis 
ited  Thompson  twice  in  the  winter,  the  last 
time  in  December,  and  had  also  been  there  in 
the  summer. 

Sanford  Conover  testified  that  he  had  been 
for  some  time  a  clerk  in  the  war  department  at 
Richmond;  that  in  Canada  he  knew  Thompson, 
Sanders,  Cleary,  Tucker,  Clay,  and  other  rebel 
agents;  that  he  knew  John  H.  Surratt  and 
John  Wilkes  Booth:  that  he  saw  Booth  there 
upon  one  occasion,  and  John  H.  Surratt  upon 
several  successive  days;  that  he  saw  Surratt 
(whom  he  describes)  in  April  last,  in  Thomp 
son's  room,  and  also  in  company  with  Sanders ; 
that  about  the  Gth  or  7th  of  April  Surratt  de 
livered  to  Jacob  Thompson  a  dispatch  brought 
by  him  from  Benjamin,  at  Richmond,  enclos 
ing  one  in  cipher  from  Davis.  Thompson  had 
before  this  proposed  to  Conover  to  engage  in  a 
plot  to  assassinate  President  Lincoln  and  his 
cabinet,  and  on  this  occasion  he  laid  his  hand 
upon  these  despatches  and  said,  "This  makes 
the  thing  all  right,"  referring  to  the  assent  of 
the  rebel  authorities,  and  stated  that  the  rebel 
authorities  had  consented  to  the  plot  to  assas 
sinate  Lincoln,  Johnson,  the  Secretary  of  War, 
Secretary  of  State,  Judge  Chase,  and  General 
Grant.  Thompson  remarked  further  that  the 
assassination  of  these  parties  would  leave  the 
Government  of  the  United  States  entirely  with 
out  a  head ;  that  there  was  no  provision  in  the 
Constitution  of  the  United  States  by  which  they 
could  elect  another  President,  if  these  men 
were  put  out  of  the  way. 

In  speaking  of  this  assassination  of  the  Pres 
ident  and  others,  Thompson  said  that  it  was 
only  removing  them  from  office,  that  the  kill 
ing  of  a  tyrant  was  no  murder.  It  seems  that 
he  had  learned  precisely  the  same  lesson  that 
Alston  had  learned  in  November,  when  he  com 
municated  with  Davis,  and  said,  speaking  of 
the  President's  assassination,  "he  did  not 
think  anything  dishonorable  that  would  serve 
their  cause."  Thompson  stated  at  the  same 
time  that  he  had  conferred  a  commission  on 
Booth,  and  that  everybody  engaged  in  the  en 
terprise  would  be  commissioned,  and  if  it  suc 
ceeded,  or  failed,  and  they  escaped  into  Cana 
da,  they  could  not  be  reclaimed  under  the  ex 
tradition  treaty.  The  fact  that  Thompson  and 
other  rebel  agents  held  blank  commissions,  as 
I  have  said,  has  been  proved,  and  a  copy  of  one 
of  them  is  of  record  here. 

This  witness  also  testifies  to  a  conversation 
with  William  C.  Cleary,  shortly  after  the  sur 
render  of  Lee's  army,  and  on  the  day  before  the 
President's  assassination,  at  the  St.  Lawrence 
Hctfcl,  Montreal,  when,  speaking  of  the  rejoic 
ing  in  the  States  over  the  capture  of  Richmond, 


378 


THE    CONSPIRACY    TRIAL. 


€leary  said,  "they  would  put  the  laugh  on  the  |  hear  of  the  death  of  Old  Abe,  of  the  Vice- 
oHier  side  of  their  mouth  in  a  day  or  two.''  j  President  and  of  General  Dix  in  less  than  ten 
These  parties  knew  that  Conover  was  in  the  j  days,  I  might  put  him  down  as  a  fool.  That 
secret  of  the  assassination,  and  talked  with  !  was  on  the  6th  of  April.  He  mentioned  that 
him  about  it  as  freely  as  they  would  speak  of  j  Booth  was  in  Washington  at  that  time.  He 


the  weather.  Before  the  assassination  he  had 
a  conversation,  also,  with  Sanders,  who  asked 
him  if  he  knew  Booth  well,  and  expressed  some 
apprehension  that  Booth  would  "make  a  failure 


said  they  had  plenty  of  friends  in  Washington, 
and  that  some  fifteen  or  twenty  were  going." 

This  witness  ascertained,  on  the  8th  of  April, 
that  Harper  and  others  had  left  for  the  States. 


of  it;   that  he  was   desperate  and  reckless,  and  [  The    proof    is,    that    these    parties    could  come 


he  was  afraid 
failure." 


the  whole  thing   would   prove   a 


Dr.   James  B.   Merritt  testifies    that    George 


through  to  Washington,  from  Montreal  or  To 
ronto,  in  thirty-six  hours.  They  did  corne,  and 
within  the  ten  days  named  by  Harper,  the  Pres- 


Young,  one  of  the  parties  named  in  the  record,  j  ident  was  murdered  !     Some  attempts  liave  been 


declared  in  his  presence,  in  Canada,  last  fall, 
t'hat  Lincoln  should  never  be  inaugurated;  that 
they  had  friends  in  Washington,  who,  I  sup 
pose,  were  some  of  the  same  friends  referred 
to  in  the  dispatch  of  October  13,  and  whom 
Davis  had  directed  them  "to  set  to  work." 
George  N.  Sanders  also  said  to  him  "that  Lin 
coln  would  keep  himself  mighty  close  if  he  did 
serve  another  term;"  while  Steele  and  other 
confederates  declared  that  the  tyrant  never 
should  serve  another  term.  He  heard  the  as 
sassination  discussed  at  a  meeting  of  these 
rebel  agents  in  Montreal  in  February  last. 
"Sanders  said  they  had  plenty  of  money  to  ac 
complish  the  assassination,  and  named  over  a 
number  of  persons  who  were  ready  and  willing 
to  engage  in  undertaking  to  remove  the  Presi- 
denl,  Vice-President,  the  Cabinet,  and  some  of 
the  leading  generals.  At  this  meeting  he  read 
a  letter,  which  he  had  received  from  Davis, 
which  justified  him  in  making  any  arrange 
ments  that  he  could  to  accomplish  the  object." 
This  letter  the  witness  heard  read,  and  it,  in 
substance,  declared  that  if  the  people  in  Can 
ada,  and  the  Southerners  in  the  States,  were 
willing  to  submit  to  be  governed  by  such  a  ty 
rant  as  Lincoln,  he  didn't  wish  to  recognize 
tht m  as  friends.  The  letter  was  read  openly  ; 
it  was  also  handed  to  Colonel  Steele,  George 
Young,  Hill  and  Scott  to  be  read.  This  was 
about  the  middle  of  February  last.  At  this 
meeting  Sanders  named  over  the  persons  who 
were  willing  to  accomplish  the  assassination, 
and  among  the  persons  thus  named  was  Booth, 
whom  the  witness  had  seen  in  Canada  in  Oc 
tober;  also,  George  Harper,  one  of  the  conspira 
tors  named  on  the  record,  Caldwell,  Randall, 
Harrison  and  Surratt. 

The  witness  understood,  from  the  reading  of 
the  letter,  that  if  the  President,  Vice-President 
and  Cabinet  could  be  disposed  of,  it  would  sat 
isfy  the  people  of  the  North  that  the  Southern 
ers  h&d  friends  in  the  North;  that  a  peace  could 
be  obtained  on  better  terms;  that  the  rebels  had 
endeavored  to  bring  about  a  war  between  the 
United  States  and  England,  and  that  Mr. 
Sewavd,  through  his  energy  and  sagacity,  had 
thwarted  all  their  efforts;  that  was  given  as  a 


reason  for  removing  him. 
last    April    this   witness 


On  the  5th  or  6th  of 
met   George   Harper, 


Caldwell,  Randall,  and  others,  who  are  spoken 
of  in  this  meeting,  at  Montreal,  as  engaged  to 
assassinate  the  President  and  Cabinet,  when 
Harper  said  they  were  going  to  the  States  to 
make  a  row,  such  as  had  never  been  heard  of, 
and  added,  that  "if  I  (the  witness)  did  notjspiracy,  to  be  assassinated,  in  nowise  affects 


made  to  discredit  this  witness  (Dr.  Merritt), 
not  by  the  examiRition  of  witnesses  in  court, 
not  by  any  apparent  want  of  truth  in  the  testi 
mony,  but  by  the  ex  parte  statements  of  these 
rebel  agents  in  Canada,  arid  their  hired  advo 
cates  in  the  United  States.  There  is  a  state 
ment  upofi  the  record*  verified  by  an  official 
communication  from  the  War  Department, 
which  shows  the  truthfulness  of  this  witness, 
and  that  is,  that,  before  the  assassination, 
learning  that  Harper  and  his  associates  had 
started  for  the  States,  informed,  as  he  was,  of 
their  purpose  to  assassinate  the  President,  Cab 
inet  and  leading  generals,  Merritt  deemed  it 
his  duty  to  call,  and  did  call,  on  the  10th  of 
April,  upon  a  Justice  of  the  Peace,  in  Canada, 
named  Davidson,  and  gave  him  the  informa 
tion,  that  he  might  take  steps  to  stop  these 
proceedings.  The  correspondence  on  this  sub 
ject  with  Davidson  has  been  brought  into 
Court.  Dr.  Merritt  testifies,  further,  that  after 
this  meeting  in  Montreal  he  had  a  conversa 
tion  with  Clement  C.  Clay,  in  Toronto,  about 
the  letter  from  Jefferson  Davis,  which  Sanders 
had  exhibited,  in  which  conversation  Clay  gave 
the  witness  to  understand  that  he  knew  the 
nature  of  the  letter  perfectly,  and  remarked 
that  he  thought  "the  end  would  justify  the 
means.'  The  witness  also  testifies  to  the  pres 
ence  of  Booth  with  Sanders  in  Montreal,  last 
fall,  and  of  Surratt  in  Toronto  in  February 
last. 

The  Court  must  be  satisfied,  by  the  manner 
of  this  and  other  witnesses  to  the  transactions 
in  Canada,  as  well  as  by  the  fact  that  they  are 
wholly  uncontradicted  in  any  material  matter 
that  they  state,  that  they  speak  the  truth,  and 
that  the  several  parties  named  on  your  record 
(Davis/Thompson,  Cleary,  Tucker,  Clay,  Young, 
Harper,  Booth  and  John  H.  Surratt),  did  com 
bine  and  conspire  together,  in  Canada,  to  kill 
and  murder  Abraham  Lincoln,  Andrew  John 
son,  William  H.  Seward  and  Ulysses  S.  Grant. 
That  this  agreement  was  substantially  entered 
into  by  Booth  and  the  agents  of  Davis  in  Can 
ada  as  early  as  October  there  can  not  be  any 
doubt.  The  language  of  Thompson  at  that 
time,  and  before,  was  that  he  was  in  favor  of 
the  assassination.  His  further  language  was, 
that  he  knew  the  men  who  were  ready  to  do  it; 
and  Booth,  it  is  shown,  was  there  at  that  time, 
and,  as  Thompson's  secretary  says,  was  one  of 
the  men  referred  to  by  Thompson. 

The  fact  that  others,  beside  the  parties  named 
on  the  record,  were,  by  the  terms  of  the  con- 


ARGUMENT    OF   JOHN   A.    BINGHAM. 


379 


the  case  now  on  trial.  If  it  is  true  that  these 
parties  did  conspire  to  murder  other  parties,  as 
well  as  those  named  upon  the  record,  the  sub 
stance  of  the  charge  is  proved. 

It  is  also  true  that,  if,  in  pursuance  of  that 
conspiracy,  Booth  confederated  with  Surratt 
and  the  accused,  killed  and  murdered  Abraham 
Lincoln,  the  charge  and  specification  is  proved 
literally,  as  stated  on  your  record,  although 
their  conspiracy  embraced  other  persons.  In 
law  the  case  stands,  though  it  may  appear  that 
the  conspiracy  was  to  kill  and  murder  the 
parties  named  in  the  record  and  others  not 
named  in  the  record.  If  the  proof  is  that  the 
accused,  with  Booth,  Surratt,  Davis,  etc.,  con 
spired  to  kill  and  murder  one  or  more  of  the 
persons  named  the  charge  of  conspiracy  is 
proved. 

The  declaration  of  Sanders,  as  proved,  that 
there  was  plenty  of  money  to  carry  out  this  as 
sassination,  is  very  strongly  corroborated  by 
the  testimony  of  Mr.  Campbell,  cashier  of  the 
Ontario  Bank,  who  states  that  Thompson,  during 
the  current  year  preceding  the  assassination, 
had  upon  deposit,  in  the  Montreal  Branch  of 
the  Ontario  Bank,  six  hundred  and  forty  nine 
thousand  dollars,  beside  large  sums  to  his  credit 
in  other  banks  in  the  province. 

There,  is  a  further  corroboration  of  the  testi 
mony  of  Conover  as  to  the  meeting  of  Thompson 
and  Surratt  in  Montreal,  and  the  delivery  of 
the  dispatches  from  Richmond,  on  the  6th  or 
7th  of  April,  first,  in  the  fact,  which  is  shown  by 
the  testimony  of  Chester,  that  in  the  winter,  or 
spring,  Booth  said  he  himself,  or  some  other 
party,  must  'go  to  Richmond;  and,  second,  by 
the  letter  of  Arnold,  dated  27th  of  March  last, 
that  he  preferred  Booth's  first  query,  that  he 
would  first  go  to  Richmond  and  see  how  they 
would  take  it,  manifestly  alluding  to  the  pro 
posed  assassination  of  the  President.  It  does 
not  follow,  because  Davis  had  written  a  letter 
in  February,  which,  in  substance,  approved  the 
general  object,  that  the  parties  were  fully  satis 
fied  with  it ;  because  it  is  clear  there  was  to  be 
some  arrangement  made  about  the  funds;  and 
it  is  also  clear  that  Davis  had  not  before  as 
distinctly  approved  and  sanctioned  this  act  as 
his  agents,  either  in  Canada  or  here,  desired. 
Booth  said  to  Chester,  "We  must  have  money; 
there  is  money  in  this  business,  and,  if  you  will 
enter  into  it,  I  will  place  three  thousand  dollars 
at  the  disposal  of  your  family;  but  I  have  no 
money  myself,  and  must  go  to  Richmond,"  or 
one  of  the  parties  must  go,  "to  get  money  to 
carry  out  the  enterprise."  This  was  one  of  the 
arrangements  that  was  to  be  "made  right  in 
Canada."  The  funds  at  Thompson's  disposal, 
as  the  banker  testifies,  were  exclusively  raised 
by  drafts  of  the  Secretary  of  the  Treasury  of 
the  Confederate  States  upon  London,  deposited 
in  their  bank  to  the  credit  of  Thompson. 

Accordingly,  about  the  27th  of  March,  Sur- 
vatt  did  go  to  Richmond.  On  the  3d  of  April 
he  returned  to  Washington,  and  the  same  day 
left  for  Canada.  Before  leaving,  he  stated  to 
Weichmann  that  when  in  Richmond  he  had 
had  a  conversation  with  Davis  and  with  Ben 
jamin.  The  fact  in  this  connection  is  not  to  i 
be  overlooked,  that  on  or  about  the  day  Surratt  i 


arrived  in  Montreal,  April  6th,  Jacob  Thomp 
son,  as  the  cashier  of  the  Ontario  Bank  states, 
drew  of  these  Confederate  funds  the  sum  of 
one  .hundred  and  eighty  thousand  dollars  in 
the  form  of  certificates,  which,  as  the  bank  of 
ficer  testifies,  "might  be  used  anywhere." 

What  more  is  wanting?  Surely  no  word 
further  need  be  spoken  to  show  that  John 
Wilkes  Booth  was  in  this  conspiracy;  that 
John  H.  Surratt  was  in  this  conspiracy  ;  and 
that  Jefferson  Davis  and  his  several  agents 
named,  in  Canada,  were  in  this  conspiracy. 
If  any  additional  evidence  is  wanting  to  show 
the  complicity  of  Davis  in  it,  let  the  paper 
found  in  the  possession  of  his  hired  assassin, 
Booth,  come  to  bear  witness  against  him. 
That  paper  contained  the  secret  cipher  which 
Davis  used  in  his  State  Department  at  Rich 
mond,  which  he  employed  in  communicating 
with  his  agents  in  Canada,  and  which  they 
employed  in  the  letter  of  October  13th,  noti 
fying  him  that  ''their  friends  would  be  set  to 
work  as  he  had  directed.*'  The  letter  in  cipher 
found  in  Booth's  possession,  is  translated  here 
by  the  use  of  the  cipher  machine  now  in  Court, 
which,  as  the  testimony  of  Mr.  Dana  shows, 
he  brought  from  the  rooms  of  Davis'  State 
Department  in  Richmond.  Who  gave  Booth 
this  secret  cipher?  Of  what  use  was  it  to 
him  if  he  was  not  in  confederation  with  Davis? 

But  there  is  one  other  item  of  testimony 
that  ought,  among  honest  and  intelligent  peo 
ple  at  all  conversant  with  this  evidence,  to 
end  all  further  inquiry  as  to  whether  Jeffer 
son  Davis  was  -one  of  the  parties,  with  Booth, 
as  charged  upon  this  record,  in  the  conspiracy 
to  assassinate  the  President  and  others.  That 
is,  that  on  the  fifth  day  after  the  assassination, 
in  the  city  of  Charlotte,  North  Carolina,  a 
telegraphic  dispatch  was  received  by  him,  at 
the  house  of  Mr.  Bates,  from  John  C.  Breck- 
in ridge,  his  rebel  Secretary  of  War,  which 
dispatch  is  produced  here,  identified  by  the 
telegraph  agent,  and  placed  upon  your  record 
in  the  words  following: 

"  GREENSBORO',  April  19,  1865. 
" His  Excellency,  President  Davis: 

"President  Lincoln  was  assassinated  in  the 
theater  in  Washington  on  the  night  of  the  14th 
inst.  Seward's  house  was  entered  on  the  same 
night  and  he  was  repeatedly  stabbed,  and  is 
probably  mortally  wounded. 

"JOHN   C.  BRECKINRIDGE." 

At  the  time  this  dispatch  was  handed  to 
him,  Davis  was  addressing  a  meeting  from  the 
steps  of  Mr.  Bates'  house,  and  after  reading 
the  dispatch  to  the  people,  he  said:  "If  it  were 
to  be  done,  it  were  better  it  were  well  done." 
Shortly  afterward,  in  the  house  of  the  witness, 
in. the  same  city,  Breckiriridge,  having  come  to 
see  Davis,  stated  his  regret  that  the  occurrence 
bad  happened,  because  he  deemed  it  unfortu 
nate  for  the  people  of  the  South  at  that  time. 
Davis  replied,  referring  to  the  assassination, 
"  Well,  General,  I  don't  know;  if  it  were  to  be 
done  at  all,  it  were  better  that  it  were  well 
done;  and  if  the  same  had  been  done  to  Andy 
Johnson,  the  beast,  and  to  Secretary  Stanton, 
the  job  would  then  be  complete" 


380 


THE    CONSPIRACY   TRIAL. 


Accomplished  as  this  man  was  in  all  the  arts  when  others  had  fled,  he  must  be  murdered; 
of  a  conspirator,  he  was  not  equal  to  the  task  and  because  the  Secretary  of  War  had  taken 
— as  happily,  in  the  good  providence  of  God,  care  by  the  faithful  discharge  of  hiss  duties, 
no  mortal  man  is — of  concealing,  by  any  form  ;  that  the  Republic  should  live  and  not  die,  he 
of  words,  any  great  crime  which  he  may  have  must  be  murdered.  Inasmuch  as  these  two 
meditated  or  perpetrated  either  against  his  faithful  officers  were  not  also  assassinated,  as- 
Government  or  his  fellow-men.  It  was  doubt-  suming  that  the  Secretary  of  State  was  mor- 
less  furthest  from  Jefferson  Davis'  purpose  to  tally  wounded,  Davirs  could  not  conceal  his 
make  confession.  His  guilt  demanded  utter-  disappointment  and  chagrin  that  the  work  was 
ance;  that  demand  he  could  not  resist;  there-!  not  "well  done,"  that  the '-job  was  not  complete!" 
fore  his  words  proclaimed  his  guilt,  in  spite  of  j  Thus  it  appears  by  the  testimony  that  the 
his  purpose  to  conceal  it.  He  said,  "If  it  were  proposition  made  to  Davis  was  to  kill  and 
to  be  done,  it  were  better  it  were  well  done.'1  .  murder  the  deadliest  enemies  of  the  Confed- 
Would  a-ny  man,  ignorant  of  the  conspiracy,  be  !  eracy — not  to  kidnap  them,  as  is  now  pretended 
able  to  devise  and  fashion  such  a  form  of  speech  |  here;  that  by  the  declaration  of  Sanders, 
as  that?  Had  not  the  President  been  murdered  ?  j  Tucker,  Thompson,  Ciay,  Cleary,  Harper,  and 
Had  he  not  reason  to  believe  that  the  Secretary  !  Young,  the  conspirators  in  Canada,  the  agree- 
of  State  had  been  mortally  wounded?  Yet  he  men t  and  combination  among  them  was  to 
was  not  satisfied,  but  was  compelled  to  say,  "itj  kill  and  murder  Abraham  Lincoln,  William  H. 
were  better  it  were  well  done" — that  is  to  say,  all  i  Seward,  Andrew  Johnson,  Ulysses  S.  Grant, 
that  had  been  agreed  to  be  done  had  not  been  i  Edwin  M.  Stanton,  and  others  of  his  advisors, 
done.  Two  days  afterward,  in  his  conversa- 1  and  not  to  kidnap  them;  it  appears  from  every 
tion  with  Breckinridge,  he  not  only  repeats  the  i  utterance  of  John  Wilkes  Booth,  as  well  as 
same  form  of  expression — "if  it  were  to  be  from  the  Charles  Selby  letter,  of  which  men- 


done  it  were  better  it  were  well  dene" — but  adds 
these  words:  "And  if  the  same  had  been  done 
to  Andy  Johnson,  the  beast,  and  to  Secretary 
Stanton,  the  job  would  then  be  complete"  He 
would  accept  the  assassination  of  the  Presi 
dent,  the  Vice-President,  of  the  Secretary  of 
State,  and  the  Secretary  of  War,  as  a  complete 


tion  will  presently  be  made,  that,  as  early  as 
November,  the  proposition  with  him  was  to 
kill  and  murder — not  to  kidnap. 

Since  the  first  examination  of  Conover,  who 
testified,  as  the  Court  will  remember,  to  many 
important  facts  against  these  conspirators  and 
agents  of  Davis  in  Canada,  among  others,  the 


execution  of  the  "job"  which  he  had  given  out  terrible  and  fiendish  plot,  disclosed  by  Thonip- 
upon  contract,  and  which  he  had  "made  all  son,  Pallen,  and  others,  that  they  had  ascer- 
right,"  so  far  as  the  pay  was  concerned,  by  the  i  tained  the  volume  of  water  in  the  reservoir 
dispatches  he  had  sent  to  Thompson  by  Sur-j  supplying  New  York  city,  estimated  the  quan- 
ratt,  one  of  his  hired  assassins.  Whatever  may  j  tity  of  poison  required  to  render  it  deadly,  and 
be  the  conviction  of  others,  my  own  conviction  i  intended  thus  to  poison  a  whole  city,  Conover 


Jefferson  Davis  is  as  clearly  proven 
guilty  of  this  conspiracy  as  is  John  Wilkes  Booth, 
by  whose  hand  Jefferson  Davis  inflicted  the 
mortal  wound  upon  Abraham  Lincoln.  His 
words  of  intense  hate,  and  rage,  and  disappoint 
ment,  are  not  to  be  overlooked — that  the  assas 
sins  had  not  done  their  work  well;  that  they 
had  not  succeeded  in  robbing  the  people  alto 
gether  of  their  Constitutional  Executive  and 


his  advisers;  and  hence  he   exclaims, 
had  killed  Andy  Johnson,  the  beast! 


'If  they 
Neither 


can  he  conceal  his  chagrin  and  disappointment 
that  the  War  Minister  of  the  Republic,  whose 
energy,  incorruptible  integrity,  sleepless  vigi 
lance,  and  executive  ability  had  organized  day 


returned  to  Canada,  by  direction  of  this  Court, 
for  the  purpose  of  obtaining  certain  document 
ary  evidence.  There,  about  the  9th  of  June,  he 
met  Beverley  Tucker,  Sanders,  and  other  con 
spirators,  and  conversed  with  them.  Tucker 
declared  that  Secretary  Stanton,  whom  he  de 
nounced  as  "a  scoundrel,"  and  Judge  Holt, 
whom  he  called  "a  bloodthirsty  villain,''  could 
protect  themselves,  as  long  as  they  remained 
in  office,  by  a  guard,  but  that  would  not  always 
be  the  case,  and,  by  the  Eternal!  he  had  a 
large  account  to  settle  with  them."  After  this, 
the  evidence  of  Conover  here  having  been  pub 
lished,  these  parties  called  upon  him,  and 
asked  him  whether  he  had  been  to  Washington 


and  had  testified  before  this  Court.  Conover 
denied  it ;  they  insisted,  and  took  him  to  a  room, 
where,  with  drawn  pistols,  they  compelled  him 
to  consent  to  make  an  affidavit  that  he  had  been 
falsely  personated  here  by  another,  and  that  he 
would  make  that  affidavit  before  a  Mr.  Kerr, 


by  day,  month  by  month,  and  year  by  year, 
victory  for  our  arms,  had  escaped  the  knife  of 
the  hired  assassins.  The  job,  says  this  pro 
curer  of  assassination,  was  not  well  done;  it 
had  been  better  if  it  had  been  well  done!  Be 
cause  Abraham  Lincoln  had  been  clear  in  his 

great  office,  and  had  saved  the  nation's  life  by  j  who  would  witness  it.  They  then  called  in  Mr. 
enforcing  the  nation's  laws,  this  traitor  de-  j  Kerr  to  certify  to  the  public  that  Conover  had 
dares  he  must  be  murdered;  because  Mr.  Sew-  |  made  such  a  denial.  They  also  compelled  this 
ard,  as  the  foreign  Secretary  of  the  country,  !  witness  to  furnish,  for  publication,  an  adver- 
had  thwarted  the  purposes  of  treason  to  plunge  j  tisement,  offering  a  reward  of  five  hundred  dol- 
his  country  into  a  war  with  England,  he  must  j  lars  for  the  arrest  of  the  "infamous  and  per- 
be  murdered;  because,  upon  the  murder  of  I  jured  scoundrel"  who  had  recently  personated 
Mr.  Lincoln,  Andrew  Johnson  would  succeed  j  James  W.  Wallace  under  the  name  of  Sanford 
to  the  Presidency,  and  because  he  had  been  true  i  Conover,  and  testified  to  a  tissue  of  falsehoods 
to  the  Constitution  and  Government,  faithful !  before  the  Military  Commission  at  Washington, 
found  among  the  faithless  of  his  own  State,  j  which  advertisement  was  published  in  the  pa- 
clinging  to  the  falling  pillars  of  the  Republic  I  pers. 


ARGUMENT    OF   JOHN   A.    BINGIIAM. 


381 


To  these  facts  Mr.  Conover  now  testifies,  and 
also  discloses  the  fact  that  these  same  men  pub 
lished,  in  the  report  of  the  proceedings  before 
Judge  Smith,  an  affidavit  purporting  to  be  his, 
but  which  he  never  made.  The  affidavit  which 
he  in  fact  made,  .and  which  was  published  in  a 
newspaper  at  that  time,  produced  here,  is  set 
out  substantially  upon  your  record,  and  agrees 
with  the  testimony  upon  the  same  point  given 
by  him  in  this  Court. 

To  suppose  that  Conover  ever  made  such  an 
affidavit,  voluntarily,  as  the  one  wrung  from 
him  as  stated,  is  impossible.  Would  he  adver 
tise  for  his  own  arrest,  and  charge  himself  with 
falsely  personating  himself?  But  the  fact  can 
not  evade  observation,  that,  when  these  guilty 
conspirators  saw  Conover's  testimony  before 
this  Court  in  the  public  prints,  revealing  to  the 
world  the  atrocious  plots  of  these  felon  conspir 
ators,  conscious  of  the  truthfulness  of  his  state 
ments,  they  cast  about  at  once  for  some  defense 
before  the  public,  and  devised  the  foolish  and 
stupid  invention  of  compelling  him  to  make  an 
affidavit  that  he  was  not  Sanford  Conover,  was 
not  in  this  Court,  never  gave  this  testimony, 
but  was  a  practicing  lawyer  in  Montreal !  This 
infamous  proceeding,  coupled  with  the  evi 
dence  before  detailed,  stamps  these  ruffian 
plotters  with  the  guilt  of  this  conspiracy. 

John  Wilkes  Booth  having  entered  into  this 
conspiracy  in  Canada,  as  has  been  shown,  as 
early  as  October,  he  is  next  found  in  the  city 
of  New  York,  on  the  llth  day,  as  I  claim,  of 
November,  in  disguise,  in  conversation  with 
another,  the  conversation  disclosing  to  the  wit 
ness,  Mrs.  Hudspeth,  that  they  had  some  mat 
ter  of  personal  interest  between  them;  that 
upon  one  of  them  the  lot  had  fallen  to  go  to 
Washington;  upon  the  other  to  go  to  Newbern. 
This  witness,  upon  being  shown  the  photograph 
of  Booth,  swears  "that  the  face  is  the  same" 
as  that  of  one  of  those  men,  who,  she  says,  was 
a  young  man  of  education  and  culture,  as  ap 
peared  by  his  conversation,  and  who  had  a 
scar,  like  a  bite,  near  the  jaw-bone.  It  is  a 
fact,  proved  here  by  the  Surgeon-General,  that 
Booth  had  such  a  scar  on  the  side  of  his  neck. 
Mrs.  Hudspeth  heard  him  say  he  would  leave 
for  Washington  the  day  after  to-morrow.  His 
companion  appeared  angry  because  it  had  not 
fallen  on  him  to  go  to  Washington.  This  took 
place  after  the  Presidential  election  in  Novem 
ber.  She  can  not  fix  the  precise  date,  but 
says  she  was  told  that  General  Butler  left  New 
York  on  that  day.  The  testimony  discloses 
that  General  Butler's  army  was,  on  the  llth 
of  November,  leaving  New  York.  The  register 
of  the  National  Hotel  shows  that  Booth  left 
Washington  on  the  early  morning  train,  No 
vember  11,  and  that  he  returned  to  this  city  on 
the  14th.  Chester  testifies  positively  to  Booth's 
presence  in  New  York  early  in  November. 
This  testimony  shows  most  conclusively  that 
Booth  was  in  New  York  on  the  llth  of  Novem 
ber.  The  early  morning  train  on  which  he 
left  Washington  would  reach  New  York  early 
in  the  afternoon  of  that  day.  Chester  saw  him 
there  early  in  November,  and  Mrs.  Hudspeth 
not  only  identifies  his  picture,  but  describes 
his  person.  The  scar  upon  his  neck,  near  his 


jaw,  was  peculiar,  and  is  well  described  by  the 
witness  as  like  a  bite.  On  that  day  Booth  had 
a  letter  in  his  possession  which  he  accidentally 
dropped  in  the  street  car  in  the  presence  of 
Mrs.  Hudspeth,  the  witness,  who  delivered  it 
to  Major-General  Dix  the  same  day,  and  by 
whom,  as  his  letter  on  file  before  this  Court 
shows,  the  same  was  transmitted  to  the  War 
Department,  November  17,  1864.  That  letter 
contains  these  words: 

"DEAR  Louis:  The  time  has  at  last  come 
that  we  have  all  so  wished  for,  and  upon  you 
every  thing  depends.  As  it  was  decided,  be 
fore  you  left,  we  were  to  cast  lots ;  we  accord 
ingly  did  so,  and  you  are  to  be  the  Charlotte 
Corday  of  the  19th  century.  When  you  re 
member  the  fearful,  solemn  vow  that  was  taken 
by  us,  you  will  feel  there  is  no  drawback. 
Abe  must  die,  and  now.  You  can  choose  your 
weapons — the  cup,  the  knife,  the  bullet.  The 
cup  failed  us  once,  and  might  again.  Johnson, 
who  will  give  this,  has  been  like  an  enraged 
demon  since  the  meeting,  because  it  has  not 
fallen  upon  him  to  rid  the  world  of  the  mon 
ster.  *  *  *  You  know  where  to 
find  your  friends.  Your  disguises  are  so  perfect 
and  complete,  that,  without  one  knew  your  face, 
no  police  telegraphic  dispatch  would  catch 
you.  The  English  gentleman,  Harcourt,  must 
not  act  hastily.  Remember  he  has  ten  days. 
Strike  for  your  home,  strike  for  your  country,' 
bide  your  time,  but  strike  sure.  Get  introduced ; 
congratulate  him;  listen  to  his  stories  (not 
many  more  will  the  brute  tell  to  earthly 
friends);  do  anything  but  fail,  and  meet  us  at 
the  appointed  place  within  the  fortnight.  You 
will  probably  hear  from  me  in  Washington. 
Sanders  is  doing  us  no  good  in  Canada. 

"CHAS.  SELBY.'' 

The  learned  gentleman  (Mr.  Cox),  in  his 
very  able  and  carefully  considered  argument 
in  defense  of  O'Laughlin  and  Arnold,  attached 
importance  to  this  letter,  and,  doubtless,  very 
clearly  saw  its  bearing  upon  the  case,  and, 
therefore,  undertook  to  show  that  the  witness, 
Mrs.  Hudspeth,  must  be  mistaken  as  to  the 
person  of  Booth.  The  gentleman  assumes  that 
the  letter  of  General  Dix,  of  the  17th  of  No 
vember  last,  transmitting  this  letter  to  the  War 
Department,  reads  that  the  party  who  dropped 
the  letter  was  heard  to  say  that  he  would  start 
to  Washington  on  Friday  night  next,  although 
the  word  "next"  is  not  in  the  letter;  neither  is 
it  in  the  quotation  which  the  gentleman  makes, 
for  he  quotes  it  fairly;  yet  he  concludes  that 
this  would  be  the  18th  of  November. 

Now,  the  fact  is,  the  llth  of  November  last 
was  Friday,  and  the  register  of  the  National  Ho 
tel  bears  witness  that  Mrs.  Hudspeth  is  not 
mistaken;  because  her  language  is,  that  Booth 
said  he  would  leave  for  Washington  day  after 
to-morrow,  which  would  be  Sunday,  the  13th, 
and  if  in  the  evening,  would  bring  him  to 
Washington  on  Monday,  the  14th  of  November, 
the  day  on  which,  the  register  shows,  he  did  re 
turn  to  the  National  Hotel.  As  to  the  improb 
ability  which  the  gentleman  raises,  on  the  con 
versation  happening  in  a  street  car,  crowded 
with  people,  there  was  nothing  that  transpired. 


382 


THE    CONSPIRACY    TRIAL. 


although  the  conversation  was  earnest,  which 
enabled  the  witness,  or  could  have  enabled  any 
one,  in  the  absence  of  this  letter,  or  of  the  sub 
sequent  conduct  of  Booth,  to  form  the  least 
idea  of  the  subject-matter  of  their  conversa 
tion.  The  gentleman  does  not  deal  altogether 
fairly  in  his  remarks  touching  the  letter  of 
General  Dix;  because,  upon  a  careful  exami 
nation  of  the  letter,  it  will  be  found  that  he  did 
not  form  any  such  judgment  as  that  it  was  a 
hoax  for  the  Sunday  Mercury,  but  he  took  care 
to  forward  it  to  the  Department,  and  asked  at 
tention  to  it;  when,  as  appears  by  the  testimony 
of  the  Assistant  Secretary  of  War,  Mr.  Dana, 
the  letter  was  delivered  to  Mr.  Lincoln,  who 
considered  it  important  enough  to  indorse  it 
with  the  word  "  Assassination,"  and  file  it  in 
his  office,  where  it  was  found  after  the  commis 
sion  of  this  crime,  and  brought  into  this  Court 
to  bear  witness  against  his  assassins. 

Although  this  letter  would  imply  that  the  as 
sassination  spoken  of  wasto  take  place  speedily, 
yet  the  party  was  to  bide  his  time.  Though  he 
had  entered  into  the  preliminary  arrangements 
in  Canada;  although  conspirators  had  doubtless 
agreed  to  co-operate  with  him  in  the  commis 
sion  of  the  crime,  and  lots  had  been  cast  for 
the  chief  part  in  the  bloody  drama,  yet  it  re 
mained  for  him,  as  the  leader  and  principal  of 
the  hired  assassins,  by  whose  hand  their  em 
ployers  were  to  strike  the  murderous  blow,  to 
collect  about  him  and  bring  to  Washington 
such  persons  as  would  be  willing  to  lend  them 
selves  fora  price  to  the  horrid  crime,  and  likely 
to  give  the  necessary  aid  and  support  in  its 
consummation.  The  letter  declares  that  Abra 
ham  Lincoln  must  die,  and  now,  meaning  as 
soon  as  the  agents  can  be  employed,  and  the 


work  done.  To 
time.  But  says 
have  been 


that  end  you    will    bide  your 
the    gentleman,    it    could    not 
same  conspiracy    charged  here 


which   this   letter  refers.     Whv  not? 


It  is 


charged  here  that  Booth  with  the  accused  and 
others  conspired  to  kill  and  murder  Abraham 
Lincoln — that  is  precisely  the  conspiracy  dis 
closed  in  the  letter.  Granted  that  the  parties 
on  trial  had  not  then  entered  into  the  combi 
nation;  if  they  at  any  time  afterward  entered 
into  it  they  became  parties  to  it,  and  the  con 
spiracy  was  still  the  same.  But,  says  the  gen 
tleman,  the  words  of  the  letter  imply  that  the 
conspiracy  was  to  be  executed  within  the  fort 
night.  Booth  is  directed,  by  the  name  of  Louis, 
to  meet  the  writer  within  the  fortnight.  It  by 
no  means  follows  that  he  was  to  strike  within 
the  fortnight,  because  he  was  to  meet  his  co- 
conspirator  within  that  time,  and  any  such  con 
clusion  is  excluded  by  the  words,  "  Bide  your 
time."  Even  if  the  conspiracy  was  to  be  exe 
cuted  within  the  fortnight,  and  was  not  so  exe 
cuted,  and  the  same  party,  Booth,  afterward  by 
concert  and  agreement  with  the  accused  and 


sure,  and  execute  all  that  he  had  agreed  with 
Davis  and  his  co-confederates  in  Canada  to  do 
— to  murder  the  President,  the  Secretary  of 
State,  the  Vice-President,  General  Grant,  and 
Secretary  Stariton. 

Even  Booth's  co-conspirator,  Payne,  now  on 
his  trial,  by  his  defense  admits  all  this,  and 
says  Booth  had  just  been  to  Canada,  '•  w;;s  filled 
with  a  mighty  scheme,  and  was  lying  in  wait 
for  agents. ;  Booth  asked  the  co-operation  of 
the  prisoner,  Payne,  and  said:  "I  will  give 
you  as  much  money  as  you  want;  but  first  you 
must  swear  to  stick  by  me.  It  is  in  the  oil 
business."  This,  you  are  told  by  the  accused, 
was  early  in  March  last.  Thus  guilt  bears 
witness  against  itself. 

We  find  Booth  in  New  York  in  November, 
December  and  January,  urging  Chester  to 
enter  into  this  combination,  assuring  him  that 
there  was  money  in  it;  that  they  had  "  friends 
on  the  other  side;"  that  if  he  would  only  par 
ticipate  in  it  he  would  never  want  for  money 
while  he  lived,  and  all  that  was  asked  of  him 
wasto  stand  nt  and  open  the  back  door  of  Ford's 
theater.  Booth,  in  his  interviews  with  Chester, 
confesses  that  he  is  without  money  himself,  and 
allows  Chester  to  reimburse  him  the  $50  which 
he  (Boo*h)  had  transmitted  to  him  in  a  letter 
for  the  purpose  of  paying  his  expenses  to 
Washington  as  one  of  the  parties  to  this  con 
spiracy.  Booth  told  him,  although  he  himself 
was  penniless,  "  there  is  money  in  this — we  have 
friends  on  the  other  side;"  and  it'  you  will  but 
engage,  I  will  have  three  thousand  dollars  de 
posited  at  once  for  the  use  of  your  family. 

Failing  to  secure  the  services  of  Chester,  be 
cause  his  soul  recoiled  with  abhorrence  from 
the  foul  woik  of  assassination  and  murder,  he 
found  more  willing  instruments  in  others  whom 
he  gathered  about  him.  Men  to  commit  the 
assassinations,  horses  to  secure  speedy  and  cer 
tain  escape,  were  to  be  provided,  and  to  this 
end  Booth,  with  an  energy  worthy  of  a  better 
cause,  applies  himself.  For  this  latter  purpose 
he  told  Chester  he  had  already  expended  $5,000. 
In  the  Litter  part  of  November,  1804,  he  visits 
Charles  county,  Maryland,  and  is  in  company 
with  one  of  the  prisoners.  Dr.  Samuel  A.  Mudd, 
with  whom  he  lodged  over  night,  and  through 
whom  he  procures  of  Gardner  one  of  the  sev 
eral  horses  which  were  at  his  disposal,  and  used 
by  him  and  his  co-conspirators  in  Washington 
on  the  night  of  the  assassination. 

Some  time  in  January  last,  it  is  in  testimony, 
that  the  prisoner,  Mudd,  introduced  Booth  to 
John  II.  Surratt  arid  the  witness,  Weichmann; 
that  Booth  invited  them  to  the  National  Hotel; 
that  when  there,  in  the  room  to  which  Booth 
took  them,  Mudd  went  out  into  the  passage, 
called  Booth  out  and  had  a  private  conversa 
tion  with  him,  leaving  the  witness  and  Surratt 
in  the  room.  Upon  their  return  to  the  room, 


others,  did  execute  it  by  "striking  sure"    and    Booth    went  out   with    Surratt,  and  upon  their 


killing  the  President,  that  act,  whenever  done, 
would  be  but  tl?e  execution  of  the  same  conspir 
acy.  The  letter  is  conclusive  evidence  of  so 
much  of  this  conspiracy  as  relates  to  the  mur 
der  of  President  Lincoln.  As  Booth  was  to  do 
anything  but  fail,  he  immediately  thereafter 
sought  out  the  agents  to  enable  him  to  strike 


coming  in,  all  three,  Booth,  Surratt,  and  Sam 
uel  A.  Mudd,  went  out  together  and  had  a  con 
versation  in  the  passage,  leaving  the  witness 
alone.  Up  to  the  time  of  this  interview,  it 
seems  that  71  either  the  witness  nor  Surratt  had 
any  knowledge  of  Booth,  as  they  were  then 
introduced  to  him  by  Dr.  Mudd.  Whether  Sur- 


ARGUMENT   OF   JOHN   A.    BINGIIAM. 


383 


ratthad  in  fact  previously  known  Booth,  it  is 
not  important  to  inquire.  Mudd  deemed  it 
necessary,  perhaps  a  wise  precaution,  to  intro 
duce  Surratt  to  Booth;  he  also  deemed  it  neces 
sary  to  have  a  private  conversation  with  Booth 
shortly  afterward,  and  directly  upon  that  to 
have  a  conversation  together  with  Booth  and 
Surratt  alone.  Had  this  conversation,  no  part 
of  which  was  heard  by  the  witness,  been  per 
fectly  innocent,  it  is  not  to  be  presumed  that 
Dr.  Mudd,  who  was  an  entire  stranger  to 
Weichmann,  would  have  deemed  it  necessary  to 
hold  the  conversation  secretly,  nor  to  have  vol 
unteered  to  tell  the  witness,  or  rather  pretend 
to  tell  him,  what  the  conversation  was ;  yet  he 
did  say  to  the  witness,  upon  their  return  to  the 
room,  by  way  of  apology,  I  suppose,  for  the 
privacy  of  the  conversation,  that  Booth  had 
some  private  business  with  him  and  wished  to 
purchase  his  farm.  This  silly  device,  as  is  of 
ten  the  case  in  attempts  at  decepiion,  failed  in 
the  execution;  for  it  remains  to  be  shown  how 
the  fact  that  Mudd  had  private  business  with 
Booth,  and  that  Booth  wished  to  purchase  his 
farm,  made  it  at  all  necessary  or  even  proper 
that  they  should  both  volunteer  to  call  out  Sur 
ratt,  who  up  to  that  moment  was  a  stranger  to 
Booth.  What  had  Surratt  to  do  with  Booth  s 
purchase  of  Mudd  s  farm?  And  if  it  was  nec 
essary  to  withdraw  arid  talk  by  themselves  se 
cretly  about  the  sale  of  the  farm,  why  should 
they  disclose  the  fact  to  the  very  man  from 
whom  they  had  concealed  it  ? 

Upon  the  return  of  these  three  parties  to  the 
room,  they  seated  themselves  at  a  table,  and 
upon  the  back  of  an  envelope  Booth  traced  lines 
with  a  pencil,  indicating,  as  the  witness  states, 
the  direction  of  roads.  Why  was  this  done  ? 
As  Booth  had  been  previously  in  that  section  of 
country,  as  the  prisoner  in  his  defense  has 
taken  great  pains  to  show,  it  was  certainly  not 
necessary  to  anything  connected  with  the  pur 
chase  of  Mudd's  farm  that  at  that  time  he 
should  be  indicating  the  direction  of  roads  to 
or  from  it ;  nor  is  it  made  to  appear,  by  any 
thing  in  this  testimony,  how  it  comes  that  Sur 
ratt,  as  the  witness  testifies,  seemed  to  be  as 
much  interested  in  the  marking  out  of  these 
roads  as  Mudd  or  Booth.  It  does  not  appear 
that  Surratt  was  in  anywise  connected  with  or 
interested  in  the  sale  of  Mudd:s  farm.  From 
all  that  has  transpired  at  this  meeting  at  the 
hotel,  it  would  seem  that  this  plotting  the  roads 
was  intended,  not  so  much  to  show  the  road  to 
Mudd  s  farm,  as  to  point  out  the  shortest  and 
safest  route  for  flight  from  the  capital,  by  the 
houses  of  all  the  parties  to  this  conspiracy,  to 
their  "  friends  on  the  other  side." 

But,  says  the  learned  gentleman  (Mr.  Ewing), 
in  his  very  able  argument  in  defense  of  this 
prisoner,  why  should  Booth  determine  that  his 
flight  should  be  through  Charles  county  ?  The 
answer  must  be  obvious,  upon  a  moment's  re 
flection,  to  every  man,  and  could  not  possibly  ! 
have  escaped  the  notice  of  the  counsel  himself,  i 
but  for  the  reason  that  his  zeal  for  his  client 
constrained  him  to  overlook  it.  It  was  abso-  i 
lately  essential  that  this  murderer  should  have 
his  co-conspirators  at  convenient  points  along 
his  route,  and  it  does  not  appear  in  evidence 


that  by  the  route  to  his  friends,  who  had  then 
fled  from  Richmond,  which  the  gentleman  (Mr. 
Ewing)  indicates  as  the  more  direct,  but  of 
which  there  is  not  the  slightest  evidence  what 
ever,  Booth  had  co-conspirators  at  an  equal 
distance  from  Washington.  The  testimony 
discloses,  further,  that  on  the  route  selected  by 
him  for  his  flight  there  is  a  large  population 
that  would  be  most  likely  to  favor  and  aid  him 
in  the  execution  of  his  wicked  purpose,  and  in 
making  his  escape.  But  it  is  a  sufficient  answer 
to  the  gentleman's  question,  that  Booth's  co-con 
spirator  Mudd  lived  in  Charles  county. 

To  return  to  the  meeting  at  the  hotel.     In  the 
light  of  other  facts  in  this  case,  it  must  become 
i  clear  to  the  Court  that  this  secret  meeting  between 
i  Booth,    Surratt,   and    Mudd    was   a   conference 
[  looking  to  the  execution  of  this  conspiracy.     It 
so   impressed  the  prisoner — -it  so  impressed   his 
counsel,  that  they  deemed  it  necessary  and  ab-. 
solutely  essential  to  their  defense  to  attempt  to 
destroy    the  credibility  of  the  witness   Weich 
mann. 

I  may  say  here,  in  passing,  that  they  have 
not  attempted  to  impeach  his  general  reputation 
for  truth  by  the  testimony  of  a  single  witness, 
nor  have  they  impeached  his  testimony  by  call 
ing  a  single  witness  to  discredit  one  material 
fact  to  which  he  has  testified  in  this  issue. 
Failing  to  find  a  breath  of  suspicion  against 
Weichmann's  character,  or  to  contradict  a  single 
fact  to  which  he  testified,  the  accused  had  to  fly 
to  the  last  resort,  an  alibi,  and  very  earnestly 
did  the  learned  counsel  devote  himself  to  the 
task. 

It  is  not  material  whether  this  meeting  in  the 
hotel  took  place  on  the  23d  of  December  or  in  Jan 
uary.  But,  says  the  counsel,  it  was  after  the 
commencement  or  close  of  the  Congressional 
holiday.  That  is  not  material ;  but  the  concur 
rent  resolution  of  Congress  shows  that  the 
holiday  commenced  on  the  22d  December,  the 
day  before  the  accused  spent  the  evening  in 
Washington.  The  witness  is  not  certain  about 
the  date  of  this  meeting.  The  material  fact  is,  did 
this  meeting  take  place — either  on  the  23d  of  De 
cember  or  in  January  last?  Were  the  private 
interviews  there  held,  and  was  the  apology 
made,  as  detailed,  by  Mudd  and  Booth,  after 
the  secret  conference,  to  the  witness?  That  the 
meeting  did  take  place,  and  that  Mudd  did  ex 
plain  that  these  secret  interviews,  with  Booth 
first,  and  with  Booth  and  Surratt  directly  after 
ward,  had  relation  to  the  sale  of  his  farm,  is 
confessedly  admitted  by  the  endeavor  of  the 
prisoner,  through  his  counsel,  to  show  that  ne 
gotiations  had  been  going  on  between  Booth 
and  Mudd  for  the  sale  of  Mudd's  farm.  If  no 
such  meeting  was  held,  if  no  such  explanation 
was  made  by  Mudd  to  Weichmann,  can  any 
man  for  a  moment  believe  that  a  witness  would 
have  been  called  here  to  give  any  testimony 
ibout  Booth  having  negotiated  for  Mudd's  farm? 
What  conceivable  connection  has  it  with  this 
case,  except  to  show  that  Mudd's  explanation  to 
Weichmann  for  his  extraordinary  conduct  was 
in  exact  accordance  with  the  fact?  Or  was  this 
testimony  about  the  negotiations  for  Mudd's  farm 
intended  to  show  so  close  an  intimacy  and  in 
tercourse  with  Booth  that  Mudd  could  not  fail  t? 


384 


THE    CONSPIRACY  TRIAL. 


recognize  him  when  he  came  flying  for  aid  to  his  j  rooms,  and  after  sitting  together  in  the  common 
house  from  the  work  of  assassination?  It  would  i  sitting-room  of  the  hotel,  they  left  Dr.  Mudd 
be  injustice  to  the  able  counsel  to  suppose  that,  j  there  about  10  o'clock,  P.  M.,  who  remained 
I  have  said  that  it  was  wholly  immaterial  during  the  night.  Weichmann  s  testimony 
whether  this  conversation  took  place  on  the  23d  i  leaves  no  doubt  that  this  meeting  on  [Seventh 
of  December  or  in  January;  it  is  in  evidence ;  street  and  interview  at  the  National  took  place 
that  in  both  those  months  Booth  was  at  the  after  dark,  and  terminated  before  10  o'clock,  P, 
National  Hotel;  that  he  occupied  a  room  there ;  M.  His  own  witness,  J.  T.  Mudd,  after  stating 
that  he  arrived  there  on  the  22d  and  was  there  that  he  separated  from  the  accused  at  the  Nu- 


on  the  23d  of  December  last,  and  also  on  the 
12th  day  of  January.  The  testimony  of  the 
witness  is,  that  Booth  said  he  had  just  come 
in.  Suppose  this  conversation  took  place  in 
December,  on  the  evening  of  the  23d,  the  time 
when  it  is  proved  by  J.  T.  Mudd,  the  witness 
for  the  accused,  that  he,  in  company  with  Sam 
uel  A.  Mudd,  spent  the  night  in  Washington 
city.  Is  there  anything  in  the  testimony  of 
that  or  any  other  witness  to  show  that  the  ac 
cused  did  not  have  and  could  not  have  had  an 
interview  with  Booth  on  that  evening?  J.  T. 
Mudd  testifies  that  he  separated  from  the  pris 
oner,  Samuel  A.  Mudd,  at  the  National  Hotel 
early  in  the  evening  of  that  day,  and  did  not 
meet  him  again  until  the  accused  came  in  for 
the  night  at  the  Pennsylvania  House,  where  he 
stopped.  Where  was  Dr.  Samuel  A.  Mudd 
during  this  interval  ?  What  does  his  witness 
know  about  him  during  that  time  ?  How  can 
he  say  that  Dr.  Mudd  did  not  go  up  on  Seventh 
street  in  company  with  Booth,  then  at  the  Na 
tional;  that  he  did  not  on  Seventh  street  meet 
Surratt  and  Weichmann  ;  that  he  did  not  return 
to  the  National  Hotel ;  that  he  did  not  have  this 
interview,  and  afterward  meet  him,  the  witness, 
as  he  testifies,  at  the  Pennsylvania  House  ?  Who 
knows  that  the  Congressional  holiday  had  not  in 
fact  commenced  on  that  day?  What  witness  has 
been  called  to  prove  that  Booth  did  not  on  either 
of  those  occasions  occupy  the  room  that  had  for 
merly  been  occupied  by  a  member  of  Congress, 
who  had  temporarily  vacated  it,  leaving  his 
books  there?  Weichmann,  I  repeat,  is  not  posi 
tive  as  to  the  date,  he  is  only  positive  as  to  the 
fact;  and  he  disclosed  voluntarily,  to  this 
Court,  that  the  date  could  probably  be  fixed  by 
a  reference  to  the  register  of  the  Pennsylvania 
House;  that  register  can  not,  of  course,  be  con 
clusive  of  whether  Mudd  was  there  in  January 
or  not,  for  the  very  good  reason  that  the  pro 
prietor  admits  that  he  did  not  know  Samuel  A. 
Mudd,  therefore  Mudd  might  have  registered 
by  any  other  name.  Weichmann  does  not  pre 
tend  to  know  that  Mudd  had  registered  at  all. 
If  Mudd  was  here  in  January,  as  a  party  to 
this  conspiracy,  it  is  not  at  all  unlikely  that,  if 
he  did  register  at  that  time  in  the  presence  of  a 
man  to  whom  he  was  wholly  unknown,  his 
kinsman  not  then  being  with  him,  he  would  reg 
ister  by  a  false  name.  But  if  the  interview  took 


place  in  December,  the  testimony  of  Weichmann 
bears  as  strongly   against,   the  accused  as  if  it 


tional  Hotel,  says  after  he  had  got  through  a 
conversation  with  a  gentleman  of  his  acquaint 
ance,  he  walked  down  the  Avenue,  went  to  sev 


eral    clothing    stores,     and    "  after 


while 


walked  round  to  the  Pennsylvania  House,  and 
"very  soon  after"  he  got  there  Dr.  Mudd  came 
in,  and  they  went  to  bed  shortly  afterward. 
AVhat  time  he  spent  in  his  "  walk  alone  "  on 
the  Avenue,  looking  at  clothing;  what  period  he 
embraces  in  the  terms  "  after  a  while,"  when 
he  retm-ned  to  the  Pennsylvania  House,  and 
''soon  after"  which  Dr.  Mudd  got  there,  the 
witness  does  not  disclose.  Neither  does  he 
intimate,  much  less  testify,  that  he  saw  Dr. 
Mudd  when  he  first  entered  the  Pennsylva 
nia  House  on  that  night  after  their  separation. 
How  does  he  know  that  Booth  and  Surratt  and 
Weichmann  did  not  accompany  Samuel  A. 
Mudd  to  that  house  that  evening?  How  does 
he  know  t'hat  the  prisoner  and  those  persons 
did  not  converse  together  some  time  in  the  sit 
ting-room  of  the  Pennsylvania  Hotel?  Jere 
miah  Mudd  has  not  testified  that  he  met  Doctor 
Mudd  in  that  room,  or  that  he  was  in  it  him 
self.  He  has,  however,  sworn  to  the  fact,  which 
is  disproved  by  no  one,  that  the  prisoner  was 
separated  from  him  long  enough  that,  evening 
to  have  had  the  meeting  with  Booth,  Surratt, 
and  Weichmann,  and  the  interviews  in  the 
National  Hotel,  and  at  the  Pennsylvania  House, 
to  which  Weichmann  has  testified  ?  Who  is 
there  to  disprove  it?  Of  what  importance  is 
it  whether  it  was  on  the  23d  day  of  December 
or  in  January  ?  How  does  that  affect  the  cred 
ibility  of  Weichmann?  He  is  a  man,  as  I  have 
before  said,  against  whose  reputation  for  truth 
and  good  conduct  they  have  not  been  able  to 
bring  one  witness.  If  this  meeting  did  by 
possibility  take  place  that  night,  is  there  any 
thing  to  render  it  improbable  that  Booth,  and 
Miidd,  and  Surratt  did  have  the  conversation 
at  the  National  Hotel  to  which  Weichmann 
testifies?  Of  what  avail,  therefore,  is  the  at 


tempt  to  prove 


that  Mudd  was  not  here  during 
he   was  here  on 


January,  if  it  was  clear 
the  23d  of  December,  1864,  and  had  this  conver 
sation  with  Booth?  That  this  attempt  to  prove 
alibi  during  January  has  failed,  is  quite  as 
clear  as  is  the  proof  of  the  fact  that  the  prisoner 
was  here  on  the  evening  of  the  23d  of  December, 
and  present  in  the  National  Hotel,  where  Booth 
stopped.  The  fact  that  the  prisoner,  Samuel  A. 
Mudd,  went  with  J.  T.  Mudd  on  that  evening 


had  happened  in  January.  Weichmann  says  to  the  National  Hotel,  and  there  separated  from 
he  does  not  know  what  time  was  occupied  in  him,  is  proved  by  his  own  witness,  J.  T.  Mudd ; 
this  interview  at  the  National  Hotel;  that  itland  that  he  did  not  rejoin  him  until  they  had 
probably  lasted  twenty  minutes;  that,  after  the!  retired  to  bed  in  the  Pennsylvania  House  is 
private  interviews  between  Mudd  and  Surratt  proved  by  the  same  witness,  and  contradicted 
and  Booth,  which  were  not  of  very  long  dura-  by  nobody.  Does  any  one  suppose  there  would 
tion,  had  terminated,  the  parties  went  to  the  '  have  been  such  assiduous  care  to  prove  that  the 
Pennsylvania  House,  where  Dr.  Mudd  had  i  prisoner  was  with  his  kinsman  all  the  time  on 


ARGUMENT    OF    JOHN    A.    BINGHAM. 


385 


the  23d  of  December  in  Washington,  if  they 
had  not  known  that  Booth  was  then  at  the  Na 
tional  Hotel,  and  that  a  meeting  of  the  pris 
oner  with  Booth,  Surratt,  arid  Weichmann  on 
that  day  would  corroborate  Weichmann's  testi 
mony  in  every  material  statement  he  made  con 
cerning  that  meeting  ? 

The  accused  having  signally  failed  to  ac 
count  for  his  absence  after  he  separated  from 
his  witnese,  J.  T.  Mudd,  early  in  the  evening 
of  the  23d  of  December,  at  the  National  Hotel, 
until  they  had  again  met  at  the  Pennsylvania 
House,  when  they  retired  to  rest,  he  now  at 
tempts  to  prove  an  alibi  as  to  the  month  of 
January.  In  this  he  has  failed,  as  he  failed  in 
the  attempt  to  show  that  he  could  not  have  met 
Booth,  Surratt  and  Weichmann  on  the  23d  of 
December. 

For  this  purpose  the  accused  calls  Betty 
Washington.  She  had  been  at  Mudd's  house 
every  night  since  the  Monday  after  Christmas 
last,  except  when  here  at  court,  and  says  that 
the  prisoner,  Mudd,  has  only  been  away  from 
home  three  nights  during  that  time.  This  wit 
ness  forgets  that  Mudd  has  not  been  at  home 
any  night  or  day  since  this  Court  assembled. 
Neither  does  she  account  for  the  three  nights  in 
which  she  sweats  to  his  absence  from  home. 
First,  she  says  he  went  to  Gardner's  party; 
second,  he  went  to  Giesboro,  then  to  Washing 
ton.  She  does  not  know  in  what  month  he  was 
away,  the  second  time,  all  night.  She  only 
knows  where  he  went,  from  what  he  and  his 
wife  said,  which  is  not  evidence ;  but  she  does 
testify  that  when  he  left  home  and  was  absent 
over  night,  the  second  time,  it  was  about  two 
or  three  weeks  after  she  came  to  his  house, 
which  would,  if  it  were  three  weeks,  make  it 
just  about  the  15th  of  January,  1865 ;  because 
she  swears  she  came  to  his  house  on  the  first 
Monday  after  Christmas  last,  which  was  the 
26th  day  of  December;  so  that  the  15th  of  Jan 
uary  would  be  three  weeks,  less  one  day,  from 
that  time ;  and  it  might  have  been  a  week  ear 
lier  according  to  her  testimony,  as,  also,  it 
might  have  been  a  week  earlier,  or  more,  by 
Weichmann's  testimony,  for  he  is  not  positive 
as  to  the  time.  What  I  have  said  of  the  regis 
ter  of  the  Pennsylvania  House,  the  headquar 
ters  of  Mudd  and  Atzerodt,  I  need  not  here  re 
peat.  That  record  proves  nothing,  save  that 
Dr.  Mudd  was  there  on  the  23d  of  December, 
which,  as  we  have  seen,  is  a  fact,  along  with 
others,  to  show  that  the  meeting  at  the  Nation 
al  then  took  place.  I  have  also  called  the  at 
tention  of  the  Court  to  the  fact  that  if  Mudd 
was  at  that  house  again  in  January,  and  did 
not  register  his  name,  that  fact  proves  nothing ; 
or,  if  he  did,  the  register  only  proves  that  he 
registered  falsely;  either  of  which  facts  might 
have  happened  without  the  knowledge  of  the 
witness  called  by  the  accused  from  that  house, 
who  does  not  know  Samuel  A.  Mudd  person 
ally. 

The  testimony  of  Henry  L.  Mudd,  his  brother, 
in  support  of  this  alibi,  is,  that  the  prisoner 
was  in  Washington  on  the  23d  of  March,  and 
on  the  10th  of  April,  four  days  before  the  mur 
der!  But  he  does  not  account  for  the  absent 
night  in  January,  about  which  Betty  Washing- 

25 


ton  testifies.  Thomas  Davis  was  called  for  the 
same  purpose,  but  stated  that  he  was  himself 
absent  one  night  in  January,  after  the  9th  of 
that  month,  and  he  could  not  say  Avhether  Mudd 
was  there  on  that  night  or  not.  He  does  tes 
tify  to  Mudd's  absence  over  night  three  times, 
and  fixes  one  occasion  on  the  night  of  the  26th 
of  JAnuary.  In  consequence  of  his  own  ab 
sence  one  night  in  January,  this  witness  can 
not  account  for  the  absence  of  Mudd  on  the 
night  referred  to  by  Betty  Washington. 

This  matter  is  entitled  to  no  further  atten 
tion.  It  can  satisfy  no  one,  and  the  burden  of 
proof  is  upon  the  prisoner  to  prove  that  he  was 
not  in  Washington  in  January  last.  How  can 
such  testimony  convince  any  rational  man  that 
Mudd  was  not  here  in  January,  against  the  evi 
dence  of  an  unimpeached  witness,  who  swears 
that  Samuel  A.  Mudd  was  in  Washington  in 
the  month  of  January?  Who  that  has  been 
examined  here  as  a  witness  knows  that  he  was 
not  ?  v 

The  Rev.  Mr.  Evans  swears  that  he  saw  him 
in  Washington  last  winter,  and  that  at  the 
same  time  he  saw  Jarboe,  the  one  coming  out 
of,  and  the  other  going  into,  a  house  on  H 
street,  which  he  was  informed  on  inquiry,  was 
the  house  of  Mrs.  Surratt.  Jarboe  is  the  only 
witness  called  to  contradict  Mr.  Evans,  and  he 
leaves  it  in  extreme  doubt  whether  he  does  not 
corroborate  him,  as  he  swears  that  he  was  here 
himself  last  winter  or  fall,  but  can  not  state  ex 
actly  the  time.  Jarboe's  silence  on  questions 
touching  his  own  credibility  leaves  no  room  for 
any  one  to  say  that  his  testimony  could  im 
peach  Mr.  Evans,  whatever  he  might  swear. 

Miss  Anna  H.  Surratt  is  also  called  for  the 
purpose  of  impeaching  Mr.  Evans.  It  is  suffi 
cient  to  say  of  her  testimony  on  that  point  that 
she  swears  negatively  only — that  she  did  not 
see  either  of  the  persons  named  at  her  mother's 
house.  This  testimony  neither  disproves,  nor 
does  it  even  tend  to  disprove,  the  fact  put  in 
issue  by  Mr.  Evans.  No  one  will  pretend, 
whatever  the  form  of  her  expression  in  giving 
her  testimony,  that  she  could  say  more  than 
that  she  did  not  know  the  fact,  as  it  was  im 
possible  that  she  could  know  who  was,  or  who 
was  not,  at  her  mother's  house,  casually,  at  a 
period  so  remote.  It  is  not  my  purpose,  nei 
ther  is  it  needful  here,  to  question  in  any  way 
the  integrity  of  this  young  woman. 

It   is   further  in  testimony  that   Samuel   A. 
Mudd  was  here  on  the  3d  day  of  March  last, 
the    day   preceding    the    inauguration,    when 
Booth  was  to  strike  the  traitorous  blow ,  and  it 
was,  doubtless,   only  by   the    interposition    of 
hat  God  who  stands  within   the   shadow  and 
keeps  watch  above  his  own,  that   the  victim  of 
his  conspiracy  was   spared  that  day  from  the 
assassin's    hand    that   he    might   complete  his 
work   and   see  the  salvation  of  his  country ^in 
he  fall  of  Richmond  and  the  surrender  of  its 
great  army.     Dr.  Mudd  was   here   on  that  day 
the  3d  of  March)   to  abet,   to  encourage,  to 
nerve  his  co-conspirator  for  the  commission  of 
;his  great  crime.     He  was  carried  away  by  the 
awful  purpose  which  possessed  him,  and  rushed 
nto   the  room  of  Mr.  Norton  at  the  National 
lotel  in  search  of  Booth,  exclaiming  excitedly: 


386 


THE    CONSPIRACY    TRIAL. 


"I'm  mistaken ;  I  thought  this  was  Mr.  Booth's  j 
room."  He  is  told  Mr.  Booth  is  above,  on  the  j 
next  floor.  He  is  followed  by  Mr.  Norton,  be 
cause  of  his  rude  and  excited  behavior,  and  be 
ing  followed,  conscious  of  his  guilty  errand,  he 
turns  away,  afraid  of  himself  and  afraid  to  be 
found  in  concert  with  his  fellow-confederate. 
Mr.  Norton  identifies  the  prisoner,  and  has  no 
doubt  that  Samuel  A.  Mudd  is  the  man. 

The  Rev.  Mr.  Evans  also  swears  that,  after 
the  1st  and  before  the  4th  day  of  March  last, 
he  is  certain  that  within  that  time,  and  on  the 
2d  or  3d  of  March,  he  saw  Dr.  Mudd  drive  into 
Washington  city.  The  endeavor  is  made  by 
the  accused,  in  order  to  break  down  this  wit 
ness,  by  proving  another  alibi.  The  sister  of 
the  accused,  Miss  Fanny  Mudd,  is  called.  She 
testifies  that  she  saw  the  prisoner  at  breakfast 
in  her  father's  house,  on  the  2d  of  March,  about 
5  o'clock  in  the  morning,  and  not  again  until 
the  3d  of  March  at  noon.  Mrs.  Emily  Mudd 
swears  substantially  to  the  same  statement. 
Betty  Washington,  called  for  the  accused,  swears 
that  he  was  at  home  all  day  at  work  with  her 
on  the  2d  of  March,  and  took  breakfast  at 
home.  Frank  Washington  swears  that  Mudd 
was  at  home  all  day;  that  he  saw  him  when 
he  first  came  out  in  the  morning  about  sunrise 
from  his  own  house,  and  knows  that  he  was 
there  all  day  with  them.  Which  is  correct,  the 
testimony  of  his  sisters,  or  the  testimony  of  his 
servants?  The  sisters  say  that  he  was  at  their 
father's  house  for  breakfast  on  the  morning  of 
the  2d  of  March;  the  servants  say  he  was  at 
home  for  breakfast  with  them  on  that  day.  If 
this  testimony  is  followed,  it  proves  one  alibi 
too  much.  It  is  impossible,  in  the  nature  of 
things,  that  the  testimony  of  all  these  four  wit 
nesses  can  be  true. 

Seeing  this  weakness  in  the  testimony  brought 
to  prove  this  second  alibi,  the  endeavor  is  next 
made  to  discredit  Mr.  Norton  for  truth;  and 
two  witnesses,  not  more,  are  called,  who  testify 
that  his  reputation  for  truth  has  suffered  by 
contested  litigation  between  one  of  the  im 
peaching  witnesses  and  others.  Four  witnesses 
are  called,  who  testify  that  Mr.  Norton's 
reputation  for  truth  is  very  good ;  that  he  is  a 
man  of  high  character  for  truth,  and  entitled  to 
be  believed  whether  he  speaks  under  the  obli 
gation  of  an  oath  or  not.  The  late  Postmaster- 
General,  Hon.  Horatio  King,  not  only  sustains 
Mr.  Norton  as  a  man  of  good  reputation  for 
truth,  but  expressly  corroborates  his  testimony 
by  stating  that  in  March  last,  about  the  4th  of 
March,  Mr.  Norton  told  him  the  same  fact  to 
which  he  swears  here:  that  a  man  came  into 
his  room  under  excitement,  alarmed  his  sistei*, 
was  followed  out  by  himself,  and  went  down 
stairs  instead  of  going  up;  and  that  Mr.  Nor 
ton  told  him  this  before  the  assassination,  and 
about  the  time  of  the  inauguration.  What  mo 
tive  had  Mr.  Norton  at  that  time  to  fabricate 
this  statement?  It  detracts  nothing  from  his 
testimony  that  he  did  not  at  that  time  mention 
the  name  of  this  man  to  his  friend,  Mr.  King; 
because  it  appears  from  his  testimony — and 
there  is  none  to  question  the  truthfulness  of 
his  statement — that  at  that  time  he  did  not 
know  his  name.  Neither  does  it  take  from 


the  force  of  this  testimony,  that  Mr.  Norton 
did  not,  in  communicating  this  mattei*  to  Mr. 
King,  make  mention  of  Booth's  name;  be 
cause  there  was  nothing  in  the  transaction, 
at  the  time,  he  being  ignorant  of  the  name 
of  Mudd,  and  equally  ignorant  of  the  con 
spiracy  between  Mudd  and  Booth,  to  give  the 
least  occasion  for  any  mention  of  Booth  or  of 
the  transaction  further  than  as  he  detailed  it. 
With  such  corroboration,  who  can  doubt  the 
fact  that  Mudd  did  enter  the  room  of  Mr. 
Norton,  and  was  followed  by  him,  on  the  3d 
of  March  last?  Can  he  be  mistaken  in  the 
man?  Whoever  looks  at  theprisonercarefully 
once  will  be  sure  to  recognize  him  again. 

For  the  present,  I  pass  from  the  considera 
tion  of  the  testimony  showing  Dr.  Mudd's  con 
nection  with  Booth  in  this  conspiracy,  with 
the  remark  that  it  is  in  evidence,  and,  I  think, 
established,  both  by  the  testimony  adduced  by 
the  prosecution  and  that  by  the  prisoner,  that, 
since  the  commencement  of  this  rebellion,  John 
H.  Surratt  visited  the  prisoner's  house:  that  ho 
concealed  Surratt,  and  other  rebels  and  traitors, 
in  the  woods  near  his  house,  where,  for  several 
days,  he  furnished  them  with  food  and  bedding; 
that  the  shelter  of  the  woods,  by  night  and  by 
day,  was  the  only  shelter  that  the  prisoner  dare 
furnish  these  friends  of  his;  that,  in  November, 
Booth  visited  him,  and  remained  over  night; 
that  he  accompanied  Booth,  at  that  time,  to 
Gardners,  from  whom  he  purchased  one  of  the 
horses  used  on  the  night  of  the  assassination 
to  aid  the  escape  of  one  of  his  confederates;; 
that  the  prisoner  had  secret  intervie'ws  with 
Booth  and  Surrntt,  as  sworn  to  by  the  witness, 
Weicbinann,  in  the  National  Hotel,  whether  on 
the  23d  of  December  or  in  January  is  a  matter 
of  entire  indifference;  that  he  rushed  into  Mr. 
Norton's  room,  on  the  3d  of  March,  in  search 
of  Booth;  and  that  he  was  here  again  on  the 
10th  of  April,  four  days  before  the  murder  of 
the  President.  Of  his  conduct  after  the  assas 
sination  of  the  President,  which  is  confirma 
tory  of  all  this — his  conspiring  with  Booth,  and 
his  sheltering,  concealing  and  aiding  the  flight 
of  his  co-conspirator,  this  felon  assassin — I 
shall  speak  hereafter,  leaving  him,  for  the 
present,  with  the  remark  that  the  attempt  to 
prove  his  character  lias  resulted  in  showing 
him  in  sympathy  with  the  rebellion,  so  cruel 
that  he  shot  one  of  his  slaves,  and  declared  his 
purpose  to  send  several  of  them  to  work  on  the 
rebel  batteries  in  Richmond. 

What  others,  beside  Samuel  A.  Mudd,  and 
John  H.  Surratt,  and  Lewis  Payne,  did  Booth, 
after  his  return  from  Canada,  induce  to  join 
him  in  this  conspiracy  to  murder  the  President, 
the  Vice-President,  the  Secretary  of  State,  and 
the  Lieutenant-General,  with  the  intent  there 
by  to  aid  the  rebellion,  and  overthrow  the  Gov 
ernment  and  laws  of  the  United  States? 

On  the  10th  of  February  the  prisoners, 
Arnold  and  O'Laughlin,  came  to  Washington 
and  took  rooms  in  the  house  of  Mrs.  Vantyne; 
were  armed;  were  there  visited  frequently  by 
John  Wilkes  Booth,  and  alone;  were  occasion 
ally  absent  when  Booth  called,  who  seemed 
anxious  for  their  return;  would  sometimes 
leave  notes  for  them,  and  sometimes  a  request 


ARGUMENT   OF   JOHN   A.    BINGHAM. 


387 


that  when  they  came  in  they  should  be  told  to 
come  to  the  stable.  On  the  18th  of  March  last, 
when  Booth  played  in  "The  Apostate,"  the  wit 
ness,  Mrs.  Vantyne,  received  from  O'Laughlin 
complimentary  tickets.  These  persons  remained 
there  until  the  20th  of  March.  They  were  vis 
ited,  so  far  as  the  witness  knows,  during  their 
stay  at  her  house,  only  by  Booth,  "save  that  on 
a  single  occasion  an  unknown  man  came  to  see 
them,  and  remained  with  them  over  night 
They  told  the  witness  they  were  in  the  "oil 
business."  With  Mudd,  the  guilty  purpose  was 
Bought  to  be  concealed  by  declaring  that  he 
was  in  the  "land  business;"  with  O'Laughlin 
and  Arnold  it  was  attempted  to  be  concealed 
by  the  pretence  that  they  were  in  the  "  oil  busi 
ness."  Booth,  it  is  proved,  had  closed  up  all 
connexion  with  the  oil  business  last  September. 
There  is  not  a  word  of  testimony  to  show  that 
the  accused,  O'Laughlin  and  Arnold,  ever  in 
vested,  or  sought  to  invest,  in  any  way,  or  to 
any  amount,  in  the  oil  business ;  their  silly 
words  betray  them ;  they  forgot,  when  they 
uttered  that  false  statement,  that  truth  is  strong, 
next  to  the  Almighty,  and  that  their  crime 
must  find  them  out  was  the  irrevocable  and  ir 
resistible  law  of  nature  and  of  nature's  God. 
One  of  their  co-conspirators,  known  as  yet 
only  to  the  guilty  parties  to  this  damnable  plot 
and  to  the  Infinite,  who  will  unmask  and 
avenge  all  blood-guiltiness,  conies  to  bear  wit 
ness,  unwittingly,  against  them.  This  unknown 
conspirator,  who  dates  his  letter  at  South 
Branch  Bridge,  April  6,  1865,  mailed  and  post 
marked  Cumberland,  Maryland,  and  addressed 
to  John  Wilkes  Booth,  by  his  initials,  "J.  W. 
B.,  National  Hotel,  Washington,  D.  C.,  was  also 
in  the  "oil  speculation."  In  that  letter  he  says: 

"FRIEND  WILKES  :  I  received  yours  of  March 
12th,  and  reply  as  soon  as  practicable.  I  saw 
French,  Brady,  and  others,  about  the  oil  spec 
ulation.  The  subscription  to  the  stock  amounts 
to  eight  thousand  dollars,  and  I  add  one  thou 
sand  myself,  which  is  about  all  I  can  stand. 
Now,  when  you  sink  your  well,  go  deep  enough; 
dorit  fail;  everything  depends  upon  you  and 
your  helpers.  If  you  can  not  get  through  on 
your  trip  after  you  strike  oil,  strike  through 
Thornton  Gap  and  across  by  Capon,  Romney, 
and  down  the  Branch.  I  can  keep  you  safe 
from  all  hardships  for  a  year.  I  am  clear  of 
all  surveillance,  now  that  infernal  Purdy  is 
beat.  *  * 

"I  send  this  by  Tom,  and,  if  he  don't  get 
drunk,  you  will  get  it  the  9th.  At  all  events, 
it  can  not  be  understood  if  lost.  *  *  * 

"No  more,  only  Jake  will  be  at  Green's  with 
the  funds.  [Signed]  LON." 

That  this  letter  is  not  a  fabrication  is  made 
apparent  by  the  testimony  of  Purdy,  whose 
name  occurs  in  the  letter.  He  testified  that  he 
had  been  a  detective  in  the  Government  service, 
and  that  he  had  been  falsely  accused,  as  the 
letter  recites,  and  put  under  arrest;  that  there 
was  a  noted  rebel  by  the  name  of  Green  living 
at  Thornton  Gap;  that  there  was  a  servant, 
who  drank,  known  as  "  Tom,  '  in  the  neighbor 
hood  of  South  Branch  Bridge;  that  there  is 
an  obscure  route  through  the  Gap,  and  as  de 


scribed  in  the  letter;  and  that  a  man  commonly 
called  "  Lon "  lives  at  South  Branch  Bridge. 
If  the  Court  are  satisfied — and  it  is  for  them 
to  judge — that  this  letter  was  written  before 
the  assassination,  as  it  purports  to  have  been, 
and  on  the  day  of  its  date,  there  can  be  no 
question,  with  any  one  who  reads  it,  that  the 
writer  was  in  the  conspiracy,  and  knew  that 
the  time  of  its  execution  drew  nigh.  If  a  con 
spirator,  every  word  of  its  contents  is  evidence 
against  every  other  party  to  this  conspiracy. 

Who  can  fail  to  understand  this  letter  ?  His 
words,  "go deep  enough,"  "don't  fail,"  "every 
thing  depends  on  you  and  your  helpers,"  "if 
you  can't  get  through  on  your  trip  after  you 
strike  oil,  strike  through  Thornton  Gap,  etc., 
and  "I  can  keep  you  safe  from  all  hardships 
for  a  year,"  necessarily  imply  that  when  he 
^strikes  oil1'  there  will  be  an  occasion  for  a 
flight;  that  a  trip,  or  route,  has  already  been 
determined  upon;  that  he  may  not  be  able  to 
go  through  by  that  route,  in  which  event  he  is 
to  strike  for  Thornton  Gap,  and  across  by 
Capon  and  Romney,  and  down  the  branch,  for 
the  shelter  which  his  co-conspirator  offers  him. 
I  am  clear  of  all  surveillance  now;"  does  any 
one  doubt  that  the  man  who  wrote  those  words 
wished  to  assure  Booth  that  he  was  no  longer 
watched,  and  that  Booth  could  safely  hide  with 
him  from  his  pursuers  ?  Does  any  one  doubt, 
from  the  further  expression  in  this  letter,  "Jake 
will  be  at  Green's  with  the  funds,"  that  this 
was  a  part  of  the  price  of  blood,  or  that  the 
eight  thousand  dollars  subscribed  by  others, 
and  the  one  thousand  additional,  subscribed  by 
the  writer,  were  also  a  part  of  the  price  to  be 
paidf 

"The  oil  business,"  which  was  the  declared 
business  of  O'Laughlin  and  Arnold,  was  the 
declared  business  of  the  infamous  writer  of 
this  letter;  was  the  declared  business  of  John 
H.  Surratt;  was  the  declared  business  of  Booth 
himself,  as  explained  to  Chester  and  Payne; 
was  uthe  business"  referred  to  in  his  telegrams 
to  O'Laughlin,  and  meant  the  murder  of  the 
President,  of  his  Cabinet,  and  of  General 
Grant.  The  first  of  these  telegrams  is  dated 
Washington,  13th  March,  and  is  addressed  to 
M.  O'Laughlin,  No.  57  North  Exeter  street,  Bal 
timore,  Maryland,  and  is  as  follows:  "Don't 
you  fear  to  neglect  your  business ;  you  had 
better  come  on  at  once.  J.  Booth."  The  tele 
graphic  operator,  Hoffman,  who  sent  this  dis 
patch  from  Washington,  swears  that  John 
Wilkes  Booth  delivered  it  to  him  in  person  on 
the  day  of  its  date;  and  the  handwriting  of  the 
original  telegram  is  established  beyond  ques 
tion  to  be  that  of  Booth.  The  other  telegram 
is  dated  Washington,  March  27,  addressed  "M. 
O'Laughlin,  Esq.,  57  North  Exeter  street,  Balti 
more,  Maryland,  and  is  as  follows:  "Get  word 
o  Sam.  Come  on,  with  or  without  him,  on 
Wednesday  morning.  We  sell  that  "day,  sure; 
don't  fail.  J.  Wilkes  Booth."  The  original  of 
;his  telegram  is  also  proved  to  be  in  the  hand 
writing  of  Booth.  The  sale  referred  to,  in  this 
ast  telegram,  was  doubtless  the  murder  of  the 
President,  and  others — the  "oil  speculation," 
n  which  the  writer  of  the  letter  from  South 
3ranch  Bridge,  dated  April  6,  had  taken  a 


388 


THE    CONSPIRACY    TRIAL. 


thousand  dollars,  and  in  which  Booth  said 
there  was  money,  and  Sanders  said  there  was 
money,  and  Atxerodt  said  there  was  money. 
The  words  of  this  telegram,  "  get  word  to  Sam," 
mean  Samuel  Arnold,  his  co-conspirator,  who 
had  been  with  him  during  all  his  stay  in  Wash 
ington,  at  Mrs.  Vantyne's.  These  parties  to 
this  conspiracy,  after  they  had  gone  to  Balti 
more,  had  additional  correspondence  with 
Booth,  which  the  Court  must  infer  had  relation 
to  carrying  out  the  purposes  of  their  confede 
ration  and  agreement.  The  colored  witness, 
Williams,  testifies  that  John  Wilkes  Booth 
handed  him  a  letter  for  Michael  0  Laughlin, 
and  another  for  Samuel  Arnold,  in  Baltimore, 
some  time  in  March  last;  one  of  which  he  de 
livered  to  O'Laughlin  at  the  theater  in  Balti 
more,  and  the  other  to  a  lady  at  the  door  where 
Arnold  boarded  in  Baltimore. 

Their  agreement  and  co-operation  in  the 
common  object  having  been  thus  established, 
the  letter  written  to  Booth  by  the  prisoner 
Arnold,  dated  March  27,  1865,  the  handwriting 
of  which  is  proved  before  the  Court,  and  which 
was  found  in  Booth's  possession  after  the  assas 
sination,  becomes  testimony  against  O'Laugh 
lin,  as  well  as  against  the  writer,  Arnold, 
because  it  is  an  act  done  in  furtherance  of  their 
combination.  That  letter  is  as  follows: 

"DEAR  JOHN:  Was  business  so  important 
that  you  could  not  remain  in  Baltimore  till  I 
saw  you?  I  came  in  as  soon  as  I  could,  bxit 
found  you  had  gone  to  Washington.  I  called 
also  to  see  Mike,  but  learned  from  his  mother 
he  had  gone  out  with  you  and  had  not  returned. 
I  concluded,  therefore,  he  had  gone  with"  you. 
How  inconsiderate  you  have  been !  When  I 
left  you,  you  stated  that  we  ivould  not  meet  in  a 
month  or  so,  and,  therefore,  I  made  application 
for  employment,  an  answer  to  which  ]  shall  re 
ceive  during  the  week.  I  told  my  parents  I  had 
ceased  with  you.  Can  I,  then,  under  existing 
circumstances,  act  as  you  request?  You  know 
full  well  that  the  Government  suspicions  some 
thing  is  going  on  there;  therefore,  the  under- 
•  taking  is  becoming  more  complicated.  Why  not, 
for  the  present,  desist,  for  various  reasons, 
which,  if  you  look  into,  you  can  readily  see 
without  my  making  any  mention  thereof.  You, 
nor  any  one,  can  censure  me  for  my  present 
course.  You  have  been  its  cause,  for  how  can 
I  now  come  after  telling  them  I  had  left  you  ? 
Suspicion  rests  upon  me  now  from  my  whole 
family,  and  even  parties  in  the  country.  I  will 
be  compelled  to  leave  home  anyhow,  and  how 
soon  I  care  not.  None,  no,  not  one,  were  more 
in  favor  of  the  enterprise  than  myself,  and  to 
day  would  be  there  had  you  not  done  as  you 
have.  By  this  I  mean  manner  of  proceeding. 
I  am,  as  you  well  know,  in  need.  I  am,  as  you 
may  say,  in  rags;  whereas,  to-day,  I  ought  to 
be  well  clothed.  I  do  not  feel  right  stalking 
about  with  means,  and  more  from  appearances 
a  beggar.  I  feel  my  dependence.  But  even  all 
this  would  have  been,  and  was,  forgotten,  for  I 
was  one  with  you.  Time  more  propitious  will 
arrive  yet.  Do  not  act  rashly  or  in  haste.  I 
would  prefer  your  first  query,  'Go  and  see  how 
it  will  be  taken  in  Richmond,'  and,  ere  long,  I 


shall  be  better  prepared  to  again  be  icith  you.  I 
dislike  writing.  Would  sooner  verbally  make 
known  my  views.  Yet  your  now  waiting  causes 
me  thus  to  proceed.  Do  not  in  anger  peruse 
this.  Weigh  all  I  have  said,  and,  as  a  rational 
man  and  a  friend,  you  can  not  censure  or  up 
braid  my  conduct.  I  sincerely  trust  this,  nor 
aught  else  that  shall  or  may  occur,  will  ever  be 
an  obstacle  to  obliterate  our  former  friendship 
and  attachment.  Write  me  to  Baltimore,  as  I 
expect  to  be  in  about  Wednesday  or  Thursday; 
or,  if  you  can  possibly  come  on,  I  will,  Tuesday, 
meet  you  at  Baltimore  at  B. 

"Ever,  I  subscribe  myself,  your  friend, 

"SAM. 

Here  is  the  confession  of  the  prisoner  Arnold, 
that  he  was  one  with  Booth  in  this  conspiracy; 
the  further  confession  that  they  are  suspected 
by  the  Government  of  their  country,  and  the 
acknowledgment  that  since  they  parted  Booth 
had  communicated  among  other  things,  a  sug 
gestion  which  leads  to  the  remark  in  this  letter, 
"I  would  prefer  your  first  query,  'Go  and  see 
how  it  will  be  taken  at  Richmond,'  and  ere  long 
I  shall  be  better  prepared  to  again  be  with  you." 
This  is  a  declaration  that  affects  Arnold,  Booth, 
and  O'Laughlin  alike,  if  the  Court  are  satis 
fied,  and  it  is  difficult  to  see  how  they  can  have 
doubt  on  the  subject,  that  the  matter  to  be  re 
ferred  to  Richmond  is  the  matter  of  the  assas 
sination  of  the  President  and  others,  to  effect 
which  these  parties  had  previously  agreed  and 
conspired  together.  It  is  a  matter  in  testimo 
ny,  by  the  declaration  of  John  H.  Surratt,  who 
is  as  clearly  proved  to  have  been  in  this  con 
spiracy  and  murder  as  Booth  himself,  that 
about  the  very  date  of  this  letter,  the  27th  of 
March,  upon  the  suggestion  of  Booth,  and  with 
his  knowledge  and  consent,  he  went  to  Rich 
mond,  not  only  to  see  "how  it  would  be  taken 
there,"  but  to  get  funds  with  which  to  carry 
out  the  enterprise,  as  Booth  had  already  de 
clared  to  Chester  in  one  of  his  last  interviews, 
when  he  said  that  he  or  "some  one  of  the  par 
ty''  would  be  constrained  to  go  to  Richmond 
for  funds  to  carry  out  the  conspiracy.  Surratt 
returned  from  Richmond,  bringing  with  him 
some  part  of  the  money  for  which  he  went,  and 
was  then  going  to  Canada,  and,  as  the  testi 
mony  discloses,  bringing  with  him  the  dispatches 
from  Jefferson  Davis  to  Ids  chief  agents  in 
Canada,  which,  as  Thompson  declared  to  Con- 
over,  made  the  proposed  assassination  "all 
right."  Surratt,  after  seeing  the  parties  here, 
left  immediately  for  Canada,  and  delivered  his 
dispatches  to  Jacob  Thompson,  the  agent  of 
Jefferson  Davis.  This  was  done  by  Surratt 
upon  the  suggestion,  or  in  exact  accordance 
with  the  suggestion  of  Arnold,  made  on  the 
27th  of  March  in  his  letter  to  Booth  just  read, 
and  yet  you  are  gravely  told  that  four  weeks 
before  the  27th  of  March,  Arnold  had  aban 
doned  the  conspiracy. 

Surratt  reached  Canada  with  these  dispatches 
as  Ave  have  seen,  about  the  6th  or  7th  of 
April  last,  when  the  witness  Conover  saw  them 
delivered  to  Jacob  Thompson  and  heard  their 
contents  stated  by  Thompson,  and  the  decla 
ration  from  him  that  these  dispatches  made  it 


ARGUMENT    OF   JOHN   A.    BINGHAM. 


389 


"all  right."  That  Surratt  was  at  that  time  in 
Canada,  is  not  only  established  by  the  testi 
mony  of  Conover,  but  it  is  also  in  evidence 
that  he  told  Weichmann  on  the  3d  of  April  that 
he  was  going  to  Canada,  and  on  that  day  left 
for  Canada,  and  afterward,  two  letters  ad 
dressed  by  Surratt,  over  the  fictitious  signature 
of  John  Harrison  to  his  mother  and  to  Miss 
Ward,  dated  at  Montreal,  were  received  by 
them  on  the  14th  of  April,  as  testified  by 
Weichmann  and  by  Miss  Ward,  a  witness 
called  for  the  defense.  Thus  it  appears  that 
the  condition  named  by  Arnold  in  his  letter  had 
been  complied  with.  Booth  had  "  gone  to  Rich 
mond,"  in  the  person  of  Surratt,  "to  see  how 
it  Avould  be  taken."  The  rebel  authorities  at 
Richmond  had  approved  it,  the  agent  had  re 
turned,  and  Arnold  was,  in  his  own  words, 
thereby  better  prepared  to  rejoin  Booth  in  the 
prosecution  of  this  conspiracy. 

To  this  end  Arnold  went  to  Fortress  Mon 
roe.  As  his  letter  expressly  declares,  Booth 
said  when  they  parted,  "  we  would  not  meet  in 
a  month  or  so,  and  therefore  I  made  application 
for  employment — an  answer  to  which  I  shall 
receive  during  the  week."  He  did  receive  the 
answer  that  week  from  Fortress  Monroe,  and 
went  there  to  await  the  "more  propitious  time," 
bearing  with  him  the  weapon  of  death  which 
Booth  had  provided,  and  ready  to  obey  his  call, 
as  the  act  had  been  approved  at  Richmond  and 
been  made  "all  right."  Acting  upon  the  same 
fact  that  the  conspiracy  had  been  approved  in 
Richmond,  and  the  funds  provided,  O'Laughlin 
came  to  Washington  to  identify  General  Grant, 
the  person  who  was  to  become  the  victim  of 
his  violence  in  the  final  consummation  of  this 
crime — General  Grant,  whom,  as  is  averred  in 
the  specification,  it  had  become  the  part  of 
O'Laughlin,  by  his  agreement  in  this  conspira 
cy,  to  kill  and  murder.  On  the  evening  pre 
ceding  the  assassination — the  13th  of  April — 
by  the  testimony  of  three  reputable  witnesses, 
against  whose  truthfulness  not  one  word  is 
uttered  here  or  elsewhere,  O'Laughlin  went 
into  the  house  of  the  Secretary  of  War,  where 
General  Grant  then  was,  and  placed  himself 
in  position  in  the  hall  where  he  could  see  him, 
having  declared  before  he  reached  that  point, 
to  one  of  these  witnesses,  that  he  wished  to 
see  General  Grant.  The  house  was  brilliantly 
illuminated  at  the  time;  two,  at  least,  of  the 
witnesses  conversed  with  the  accused,  and  the 
other  stood  very  near  to  him,  took  special  no 
tice  of  his  conduct,  called  attention  to  it,  and 
suggested  that  he  be  put  out  of  the  house,  and 
he  was  accordingly  put  out  by  one  of  the  wit 
nesses.  These  witnesses  are  confident,  and 
have  no  doubt,  and  so  swear  upon  their  oaths, 
that  Michael  O'Laughlin  is  the  man  who  was 
present  on  that  occasion.  There  is  no  denial 
on  the  part  of  the  accused  that  he  was  in  Wash 
ington  during  the  day  and  during  the  night  of 
April  13th,  and  also  during  the  day  and  during 
the  night  of  the  14th;  and  yet,  to  get  rid  of 
this  testimony,  recourse  is  had  to  that  common 
device — an  alibi;  a  device  never,  I  may  say, 
more  frequently  resorted  to  than  in  this  trial. 
But  what  an  alibi  I  Nobody  is  called  to  prove  | 
it,  save  some  men  who,  by  their  own  testimony,  i 


were  engaged  in  a  drunken  debauch  through 
the  evening.  A  reasonable  man  who  reads 
their  evidence  can  hardly  be  expected  to  allow 
it  to  outweigh  the  united  testimony  of  three 
imimpeached  and  unimpeachable  witnesses 
who  were  clear  in  their  stat^hients — who  en 
tertain  no  doubt  of  the  truth*of  what  they  say 
— whose  opportunities  to  know  were  full  and 
complete,  and  who  were  constrained  to  take 
special  notice  of  the  prisoner  by  reason  of  his 
extraordinary  conduct. 

These  witnesses  describe  accurately  the  ap 
pearance,  stature,  and  complexion  of  the  ac 
cused,  but  because  they  describe  his  clothing 
as  dark  or  black,  it  is  urged  that  as  part  of 
his  clothing,  although  dark,  was  not  black, 
the  witnesses  are  mistaken.  O'Laughlin  and 
his  drunken  companions  (one  of  whom  swears 
that  he  drank  ten  times  that  evening)  were 
strolling  in  the  streets  and  in  the  direction  of 
the  house  of  the  Secretary  of  War,  up  the  Av 
enue;  hut  you  are  asked  to  believe  that  these 
witnesses  could  not  be  mistaken  in  saying  they 
were  not  off  the  Avenue  above  7th  street,  or 
on  K  street.  I  venture  to  say  that  no  man 
who  reads  their  testimony  can  determine  sat 
isfactorily  all  the  places  that  were  visited  by 
O'Laughlin  and  his  di*unken  associates  that 
evening  tfrom  seven  to  eleven  o'clock,  P.  M. 
All  this  time,  from  seven  to  eleven  o'clock,  P. 
M.,  must  be  accounted  for  satisfactorily  before 
the  alibi  can  be  established.  Loughran  does 
not  account  for  all  the  time,  for  he  left.  O'Laugh 
lin  after  seven  o'clock,  and  rejoined  him  as  he 
says,  "I  suppose  about  eight  o'clock."  Grillet 
did  not  meet  him  until  half-past  ten,  and  then 
only  casually  saw  him  in  passing  the  hotel. 
May  not  Grillet  have  been  mistaken  as  to  the 
fact,  although  he  did  meet  O'Laughlin  after 
eleven  o'clock  the  same  evening,  as  he  swears? 

Purdy  swears  to  seeing  him  in  the  bar  with 
Grillet  about  half-past  ten,  but,  as  we  have 
seen  by  Grillet's  testimony,  it  must  have  been 
after  eleven  o'clock.  Murphy  contradicts,  as 
to  time,  both  Grillet  and  Purdy,  for  he  says  it 
was  half-past  eleven  or  twelve  o'clock  when  he 
and  O'Laughlin  returned  to  Rullman's,  from 
Platz's,  and  Early  swears  the  accused  went 
from  Rullman's  to  2d  street,  to  a  dance  about 
a  quarter  past  eleven  o'clock,  when  O'Laughlin 
took  the  lead  in  the  dance  and  stayed  about 
one  hour.  I  follow  these  witnesses  no  further. 
They  contradict  each  other,  and  do  not  account 
for  O'Laughlin  all  the  time  from  seven  to 
eleven  o'clock.  I  repeat,  that  no  man  can  read 
their  testimony  without  finding  contradictions 
most  material  as  to  time,  and  coming  to  the  con 
viction  that  they  utterly  fail  to  account  for 
O'Laughlin's  whereabouts  on  that  evening. 
To  establish  an  alibi  the  witnesses  must  knoio 
the  fact  and  testify  to  it.  Loughran,  Grillet, 
Purdy,  Murphy,  and  Early  utterly  fail  to  prove 
it,  and  only  succeed  in  showing  that,  they  did 
not  know  where  O'Laughlin  was  all  this  time, 
and  that  some  of  them  were  grossly  mistaken 
in  what  they  testified,  both  as  to  time  and  place. 
The  testimony  of  James  B.  Henderson  is  equal 
ly  unsatisfactory.  He  is  contradicted  by  other 
testimony  of  the  accused  as  to  place.  He  says 
O'Laughlin  went  up  the  Avenue,  above  7th 


390 


THE   CONSPIKACY   TRIAL. 


street,  but  that  lie  did  not  go  to  9th  street. 
The  other  witnesses  swear  he  went  to  9th 
street.  He  swears  he  went  to  Canterbury 
about  nine  o'clock,  after  going  back  from  7th 
street  to  Rullvnan's.  Loughran  swears  that 
O'Laughlin  was.-with  him  at  the  corner  of  the 
Avenue  and  Othjj  street  at  nine  o'clock,  and 
went  from  thenk  to  Canterbury,  while  Early 
swears  that  O'lfcughlin  went  up  as  far  as  llth 
street,  and  returned  witli  him  and  took  supper 
at  Welcker's,  about  eight  o'clock.  If  these 
witnesses  prove  an  alibi,  it  is  really  against 
each  other.  It  is  folly  to  pretend  that  they 
prove  facts  which  make  it  impossible  that 
O'Laughlin  could  have  been  at  the  house  of 
Secretai-y  Stanton,  as  three  witnesses  swear 
he  was,  on  the  evening  of  the  13th  of  April, 
looking  for  General  Grant. 

Has  it  not,  by  the  testimony  thus  reviewed, 
been  established  prima  facie  that  in  the  months 
of  February,  March  and  April,  O'Laughlin 
had  combined,  confederated,  and  agreed  with 
John  Wilkes  Booth  and  Samuel  Arnold  to 
kill  and  murder  Abraham  Lincoln,  William 
H.  Seward,  Andrew  Johnson,  and  Ulysses  S. 
Grant?  Is  it  not  established,  beyond  a  shadow 
of  doubt,  that  Booth  had  so  conspired 
with  the  rebel  agents  in  Canada  as  early  as 
October  last:  that  he. was  in  search  of  agents 
to  do  the  work  on  pay,  in  the  interests  of  the 
rebellion,  and  that  in  this  speculation  Arnold 
arid  O'Laughlin  had  joined  as  early  as  Feb 
ruary  ;  that  then,  and  after,  with  Booth  and 
Surratt,  they  were  in  the  "oil  business,'1  which 
was  the  business  of  assassination  by  contract 
as  a  speculation  ?  If  this  conspiracy  on  the 
part  of  O'Laughlin  with  Arnold  is  established, 
even  prima  facie,  the  declarations  and  acts  of 
Arnold  and  Booth,  the  other  conspirators,  in 
furtherance  of  the  common  design,  is  evidence 
against  O'Laughlin  as  well  as  against  Arnold 
himself,  or  the  other  parties.  The  rule  of  law 
is,  that  the  act  or  declaration  of  one  conspir 
ator,  done  in  pursuance  or  furtherance  of  the 
common  design,  is  the  act  or  declaration  of 
all  the  conspirators.  1  Wharton,  706. 

The  letter,  therefore,  of  his  co-conspirator, 
Arnold,  is  evidence  against  O'Laughlinbecause 
it  is  an  act  in  the  prosecution  of  the  common 
conspiracy,  suggesting  what  should  be  done  in 
order  to  make  it  effective,  and  which  sugges 
tion,  as  has  been  stated,  was  followed  out. 
The  defense  has  attempted  to  avoid  the  force 
of  this  letter  by  reciting  the  statement  of 
Arnold,  made  to  Horner  at  the  time  he  was 
arrested,  in  which  he  declared,  among  other 
things,  that  the  purpose  was  to  abduct  Pi-esi- 
dent  Lincoln  and  take  him  South ;  that  it  was 
to  be  done  at  the  theater  by  throwing  the 
President  out  of  the  box  upon  the  floor  of  the 
stage,  when  the  accused  was  to  catch  him. 
The  very  announcement  of  this  testimony  ex 
cited  derision  that  such  a  tragedy  meant  only 
to  take  the  President  and  carry  him  gently 
away !  This  pigmy  to  catch  the  giant  as  the 
assassins  hurled  him  to  the  floor  from  an  ele 
vation  of  twelve  feet !  The  Court  has  viewed 
the  theater,  and  must  be  satisfied  that  Booth, 
in  leaping  from  the  President's  box,  broke  his 
limb.  The  Court  can  not  fail  to  conclude  that 


this  statement  of  Arnold  was  but  another  silly 
device,  like  that  of  "  the  oil  business,1'  which, 
Tor  the  time  being,  he  employed  to  hide  from 
the  knowledge  of  his  captor  the  fact  that  the 
purpose  was  to  murder  the  President.  No 
man  can,  for  a  moment,  believe  that  any  one 
of  these  conspirators  hoped  or  desired,  by  such 
a  proceeding  as  that  stated  by  the  prisoner,  to 
take  the  President  alive  in  the  presence  of 
thousands  assembled  in  the  theater  after  he  had 
been  thus  thrown  upon  the  floor  of  the  stage, 
much  less  to  carry  him  through  the  city,  through 
the  lines  of  your  army,  and  deliver  him  into 
the  hands  of  the  rebels.  No  such  purpose  was 
expressed  or  hinted  by  the  conspirators  in  Can 
ada,  who  commissioned  Booth  to  let  these  as 
sassinations  on  contract.  I  shall  waste  not  a 
moment  more  in  combatting  such  an  absurdity. 

Arnold  does  confess  that  he  was  a  conspira 
tor  with  Booth  in  this  proposed  murder :  that 
Booth  had  a  letter  of  introduction  to  Dr.  Mudd; 
that  Booth,  O'Laughlin,  Atzerodt,  Surratt,  a 
man  with  an  alias,  "  Mosby,  '  and  another 
whom  he  does  not  know,  arid  himself,  were 
parties  to  this  conspiracy,  and  that  Booth  had 
furnished  them  all  with  arms.  He  concludes 
this  remarkable  statement  to  Horner  with  the 
declaration  that  at  that  time,  to  wit,  the  first 
week  of  March,  or  four  weeks  before  he  went 
to  Fortress  Monroe,  he  left  the  conspiracy,  and 
that  Booth  told  him  to  sell  his  arms  if  he  chose. 
This  is  sufficiently  answered  by  the  fact  that, 
four  weeks  afterward,  he  wrote  his  letter  to 
Booth,  which  was  found  in  Booth's  possession 
after  the  assassination,  suggesting  to  him  what 
to  do  in  order  to  make  the  conspiracy  a  suc 
cess,  and  by  the  further  fact  that  at  the  very 
moment  he  uttered  these  declarations,  part  of 
his  arms  were  found  upon  his  person,  and  the 
rest  not  disposed  of,  but  at  his  father's  house. 

A  party  to  a  treasonable  and  murderous 
conspiracy  against  the  government  of  his  coun 
try  can  not  be  held  to  have  abandoned  it  be 
cause  he  makes  such  a  declaration  as  this,  when 
he  is  in  the  hands  of  the  officer  of  the  law,  ar 
rested  for  his  crime,  and  especially  when  his 
declaration  is  in  conflict  with  and  expressly 
contradicted  by  his  written  acts,  and  unsupport 
ed  by  any  conduct  of  his  which  becomes  a  citi 
zen  and  a  man. 

If  he  abandoned  the  conspiracy,  why  did  he 
not  make  known  the  fact  to  Abraham  Lincoln 
and  his  constitutional  advisers  that  these  men, 
armed  with  the  weapons  of  assassination,  were 
daily  lying  in  wait  for  their  lives  ?  To  pre 
tend  that  a  man  who  thus  conducts  himself  for 
weeks  after  the  pretended  abandonment,  vol 
unteering  advice  for  the  successful  prosecution 
of  the  conspiracy,  the  evidence  of  which  is  in 
I  writing,  and  about  which  there  can  be  no  mis 
take,  has,  in  fact,  abandoned  it,  is  to  insult  the 
common  understanding  of  meifc  O'Laughlin 
having  conspired  with  Arnold  to  do  this  mur 
der,  is,  therefore,  as  much  concluded  by  the 
letter  of  Arnold  of  the  27th  of  March  as  is  Ar 
nold  himself.  The  further  testimony  touching 
O'Laughlin,  that  of  Street  t,  establishes  the  fact 
that  about  the  1st  of  April  he  saw  him  in  confi 
dential  conversation  with  J.  Wilkes  Booth,  in 
this  city,  on  the  Avenue.  Another  man,  whom 


ARGUMENT   OF   JOHN  A.    BINGHAM. 


391 


the  witness  does  not  know,  was  in  conversation. 
O'Laughlin  called  Streett  to  one  side,  and  told 
him  Booth  was  busily  engaged  with  his  friend — 
was  talking  privately  to  his  friend.  This  re 
mark  of  O'Laughlin  is  attempted  to  be  account 
ed  for,  but  the  attempt  failed ;  his  counsel  tak 
ing  the  pains  to  ask  what  induced  O'Laughlin 
to  make  the  remark,  received  the  fit  reply  :  "  I 
did  not  see  the  interior  of  Mr.  O'Laughlin's 
mind ;  I  can  not  tell."  It  is  the  province  of  this 
Court  to  infer  why  that  remark  was  made,  and 
what  it  signified. 

That  John  H.  Surratt,  George  A.  Atzerodt, 
Mary  E.  Surratt,  David  E.  Herold,  and  Louis 
Payne,  entered  into  this  conspiracy  with 
Booth,  is  so  very  clear  upon  the  testimony,  that 
little  time  need " be  occupied  in  bringing  again 
before  the  Court  the  evidence  which  establishes 
it.  By  the  testimony  of  Weichmann  we  find 
Atzerodt  in  February  at  the  house  of  the  pris 
oner,  Mrs.  Surratt.  He  inquired  for  her  or  for 
John  when  he  came  and  remained  over  night. 
After  this  and  before  the  assassination  he  visit 
ed  there  frequently,  and  at  that  house  bore  the 
name  of  "  Port  Tobacco,"  the  name  by  which  he 
was  known  in  Canada  among  the  conspirators 
there.  The  same  witness  testifies  that  he  met 
him  on  the  street,  when  he  said  he  was  going 
to  visit  Payne  at  the  Herndon  House,  and  also 
^accompanied  him,  along  with  Herold  and  John 
H.  Surratt,  to  the  theater,  in  March,  to  hear 
Booth  play  in  "The  Apostate."  At  the  Pennsylva 
nia  House,  one  or  two  weeks  previous  to  the 
assassination,  Atzerodt  made  the  statement  to 
Lieutenant  Keim,  when  asking  for  his  knife 
which  he  had  left,  in  his  room,  a  knife  corres 
ponding  in  size  with  the  one  exhibited  in  Court, 
"I  want  that;  if  one  fails  I  want  the  other," 
wearing  at  the  same  time  his  revolver  at  his 
belt.  He  also  stated  to  Greenawalt,  of  the 
Pennsylvania  House,  in  March,  that  he  was 
nearly  broke,  but  had  friends  enough  to  give 
him  as  much  money  as  would  see  him  through, 
adding,  "I  am  going  away  some  of  these  days, 
but  will  return  with  as  much  gold  as  will  keep 
me  all  my  lifetime."  Mr.  Greenawalt  also  says 
that  Booth  had  frequent  interviews  with  Atze 
rodt,  sometimes  in  the  room,  and  at  other  times 
Booth  would  walk  in  and  immediately  go  out, 
Atzerodt  following. 

John  M.  Lloyd  testifies  that  some  six  weeks 
before  the  assassination,  Herold,  Atzerodt,  and 
John  H.  Surratt  came  to  his  house  at  Surratts- 
ville,  bringing  with  them  two  Spencer  carbines 
with  ammunition,  also  a  rope  and  wrench. 
Surratt  asked  the  witness  to  take  care  of  them 
and  to  conceal  the  carbines.  Surratt  took  him 
into  a  room  in  the  house,  it  being  his  mother's 
house,  and  showed  the  witness  where  to  put  the 
carbines,  between  the  joists  on  the  second  floor. 
The  carbines  were  put  there  according  to  his 
directions,  and  concealed.  Marcus  P.  Norton 
saw  Atzerodt  in  conversation  with  Booth  at  the 
National  Hotel  about  the  2d  or  3d  of  March ; 
the  conversation  was  confidential,  and  the 
witness  accidentally  heard  them  talking  in  re 
gard  to  President  Johnson,  and  say  that  "  the 
class  of  witnesses  would  be  of  that  character 
that  there  could  be  little  proven  by  them." 
This  conversation  may  throw  some  light  on  the 


fact  that  Atzerodt  was  found  in  possession  of 
Booth's  bank  book  ! 

Colonel  Nevins  testifies  that  on  the  12th  of 
April  last  he  saw  Atzerodt  at  the  Kirkwood 
House;  that  Atzerodt  there  asked  him,  a 
stranger,  if  he  knew  where  Vice-President 
Johnson  was,  and  where  Mr.  Johnson's  room 
was.  Colonel  Nevins  showed  him  where  the 
room  of  the  Vice-President  was,  and  told  him 
that  the  Vice-President  w.as  then  at  dinner. 
Atzerodt  then  looked  into  the  dining-room, 
where  Vice-President  Johnson  was  dining 
alone.  Robert  R.  Jones,  the  clerk  at  the  Kirk- 
wood  House,  states  that  on  the  14th,  the  day  of 
the  murder,  two  days  after  this,  Atzerodt  reg 
istered  his  name  at  the  hotel,  G.  A.  Atzerodt, 
and  took  No.  126,  retaining  the  room  that  day, 
and  carrying  away  the  key.  In  this  room,  af 
ter  the  assassination,  were  found  the  knife  and 
revolver  with  which  he  intended  to  murder  the 
Vice-President. 

The  testimony  of  all  these  witnesses  leaves 
no  doubt  that  the  prisoner,  George  A.  Atzerodt, 
entered  into  this  conspiracy  with  Booth ;  that 
he  expected  to  receive  a  large  compensation 
for  the  service  that  he  would  render  in  its  exe 
cution  ;  that  he  had  undertaken  the  assassina 
tion  of  the  Vice-President  for  a  price;  that  he, 
with  Surratt  and  Herold,  rendered  the  import 
ant  service  of  depositing  the  arms  and  ammu 
nition  to  be  used  by  Booth  and  his  confederates 
as  a  protection  in  their  flight  after  the  conspir 
acy  had  been  executed  ;  and  that  he  was  care 
ful  to  have  his  intended  victim  pointed  out  to 
him,  and  the  room  he  occupied  in  the  hotel,  so 
that  when  he  came  to  perform  his  horrid  work 
he  would  know  precisely  where  to  go  and  whom 
to  strike. 

I  take  no  further  notice  now  of  the  prepara 
tion  which  this  prisoner  made  for  the  successful 
execution  of  this  part  of  the  traitorous  and 
murderous  design.  The  question  is,  did  he  en 
ter  into  this  conspiracy  ?  His  language,  over 
heard  by  Mr.  Norton,  excludes  every  other 
conclusion.  Vice-President  Johnson's  name 
was  mentioned  in  that  secret  conversation  with 
Booth,  and  the  very  suggestive  expression  was 
made  between  them  that  "little  could  be  proved 
by  the  witnesses."  His  confession  in  his  de 
fense  is  conclusive  of  his  guilt. 

That  Payne  was  in  this  conspiracy  is  confessed 
in  the  defense  made  by  his  counsel,  and  is  also 
evident  from  the  facts  proved,  that  when  the  con 
spiracy  was  being  organized  in  Canada  by 
Thompson,  Sanders,  Tucker,  Cleary,  and  Clay, 
this  man  Payne  stood  at  the  door  of  Thompson  ; 
was  recommended  and  indorsed  by  Clay  with 
the  words,  "We  trust  him;  "  that  after  coming 
hither  he  first  reported  himself  at  the  house  of 
Mrs,  Mary  E.  Surratt,  inquired  for  her  and  for 
John  H.  Surratt ;  remained  there  for  four  days, 
having  conversation  with  both  of  them  ;  hav 
ing  provided  himself  with  means  of  disguise, 
was  also  supplied  with  pistols  and  a  knife, 
such  as  he  afterward  used,  and  spurs,  prepara 
tory  to  his  flight;  was  seen  with  John  H.  Sur 
ratt,  practicing  with  knives  such  as  those 
employed  in  this  deed  of  assassination,  and 
now  beftn*e  the  Court ;  was  afterward  provided 
with  lodging  at  the  Herndon  House  at  the  in- 


392 


THE    CONSPIRACY    TRIAL. 


stance  of  Surratt ;  was  visited  tlicre  by  Atzerodt, 
and  attended  Booth  and  Surratt  to  Ford's  thea 
ter,  occupying  with  those  parties  the  box,  as  I 
believe  and  which  we  may  readily  infer,  in 
which  the  President  was  afterward  mur'dered. 

If  further  testimony  be  wanting  that  he  had 
entered  into  the  conspiracy,  it  may  be  found  in 
the  fact  sworn  to  by  Weichmann,  whose  testi 
mony  no  candid  man  will  discredit,  that  about 
the  '20th  of  March,  Mrs.  Surratt,  in  great  ex 
citement,  and  weeping,  said  that  her  son  John 
had  gone  away  not  to  return,  when  about  three 
hours  subsequently,  in  the  afternoon  of  the 
same  day,  John  H.  Surratt  re-appeared,  came 
rushing  in  a  state  of  frenzy  into  the  room,  in 
his  mother's  house,  armed,  declaring  he  would 
shoot  whoever  came  into  the  room,  and  pro 
claiming  that  his  prospects  were  blasted  and 
his  hopes  gone ;  that  soon  Payne  came  into  the 
same  room,  also  armed  and  under  great  excite 
ment,  and  was  immediately  followed  by  Booth, 
with  his  riding-whip  in  his  hand,  who  walked 
rapidly  across  the  floor  from  side  to  side,  so 
much  excited  that  for  some  time  he  did  not  no 
tice  the  presence  of  the  witness.  Observing 
Weichmanu,  the  parties  then  withdrew,  upon  a 
suggestion  from  Booth,  to  an  upper  room,  and 
there  had  a  private  interview.  From  all  that 
transpired  on  that  occasion,  it  is  apparent  that 
when  these  parties  left  the  house  that  day, 
it  was  with  the  full  purpose  of  completing  some 
act  essential  to  the  final  execution  of  the  work 
of  assassination,  in  conformity  with  their  pre 
vious  confederation  and  agreement.  They  re 
turned  foiled — from  what  cause  is  unknown — 
dejected,  angry,  and  covered  with  confusion. 

It  is  almost  imposing  upon  the  patience  of 
the  Court  to  consume  time  in  demonstrating  the 
fact,  which  none  conversant  with  the  testimony 
of  this  case  can  for  a  moment  doubt,  that  Jolm 
H.  Surratt  and  Mary  E.  Surratt  were  as  surely 
in  the  conspiracy  to  murder  the  President  as 
was  John  Wilkes  Booth  himself.  You  have  the 
frequent  interviews  between  John  H.  Surratt 
and  Booth,  his  intimate  relations  with  Payne, 
his  visits  from  Atzerodt  and  Herold,  his  deposit 
of  the  arms  to  cover  their  flight  after  the  con 
spiracy  should  have  been  executed ;  his  own 
declared  visit  to  Richmond  to  do  what  Booth 
himself  said  to  Chester  must  be  done,  to-wit, 
that  he  or  some  of  the  party  must  go  to  Rich 
mond  in  order  to  get  funds  to  carry  out  the 
conspiracy  ;  that  he  brought  back  with  him 
gold,  the  price  of  blood,  confessing  himself  that 
he  was  there ;  that  he  immediately  went  to 
Canada,  delivered  dispatches  in  cipher  to  Jacob 
Thompson  from  Jefferson  Davis,  which  were  in 
terpreted  and  read  by  Thompson  in  the  pres 
ence  of  the  witness  Conover,  in  which  the  con 
spiracy  was  approved,  and,  in  the  language  of 
Thompson,  the  proposed  assassination  was 
"made  all  right." 

One  other  fact,  if  any  other  fact  be  needed, 
and  I  have  done  with  the  evidence  which  proves 
that  John  II.  Surratt  entered  into  this  combina 
tion  ;  that  is,  that  it  appears  by  the  testimony 
of  the  witness,  the  cashier  of  the  Ontario,  Bank, 
Montreal,  that  Jacob  Thompson,  about  the  day 
that  these  dispatches  were  delivered,  and  while 
Surratt  was  then  present  in  Canada,  drew  from 


( that  bank  of  the  rebel  funds  there  on  deposit 
i  the  sum  of  one  hundred  and  eighty  thousand 
I  dollars.  This  being  done,  Surratt  finding  it 
!  safer,  doubtless,  to  go  to  Canada  for  the  great 
j  bulk  of  funds  which  were  to  be  distributed 
I  among  these  hired  assassins  than  to  attempt 
I  to  carry  it  through  our  lines  direct  from  llich- 
mond,  immediately  returned  to  Washington, 
and  was  present  in  this  city,  as  is  proven  by 
the  testimony  of  Mr.  Reid,  on  the  afternoon  of 
the  14th  of  April,  the  day  of  the  assassination, 
booted  and  spurred,  ready  for  flight  when 
ever  the  fatal  blow  should  have  been  struck. 
If  he  was  not  a  conspirator  and  a  party  to  this 
great  crime,  how  comes  it  that  from  that  hour 
to  this  no  man  has  seen  him  in  the  capital,  nor 
has  he  been  reported  anywhere  outside  of  Can 
ada,  having  arrived  in  Montreal,  as  the  testi 
mony  shows,  on  the  18th  of  April,  four  days  after 
the  murder?  Nothing  but  his  conscious  coward 
guilt  could  possibly  induce  him  to  absent  him 
self  from  his  mother,  as  he  does,  upon  her 
trial.  Being  one  of  these  conspirators,  as 
charged,  every  act  of  his  in  the  prosecution  of 
this  crime  is  evidence  against  the  other  parties 
to  the  conspiracy. 

That  Mary  E.  Surratt  is  as  guilty  as  her  son 
of  having  thus  conspired,  combined  and  confed- 
ated  to  do  this  murder,  in  aid  of  this  rebellion, 
is  clear.  First,  her  house  was  the  headquarters 
of  Booth,  John  H.  Surratt,  Atzerodt,  Payne  and 
Herold.  She  is  inquired  for  by  Atzerodt;  sho 
is  inquired  for  by  Payne,  and  she  is  visited  by 
Booth,  and  holds  private  conversations  with 
him.  His  picture,  together  with  that  of  the  chief 
conspirator,  Jefferson  Davis,  is  found  in  her 
house.  She  sends  to  Booth  for  a  carriage  to 
take  her,  on  the  llth  of  April,  to  Surrattsville, 
for  the  purpose  of  perfecting  the  arrangement 
deemed  necessary  to  the  successful  execution  of 
the  conspiracy,  and  especially  to  facilitate  and 
protect  the  conspirators  in  their  escape  from 
justice.  On  that  occasion  Booth,  having  dis 
posed  of  his  carriage,  gives  to  the  ugcnt  she 
employed  ten  dollars,  with  which  to  hire  a  con 
veyance  for  that  purpose.  And  yet  the  pre 
tence  is  made  that  Mrs.  Surratt  went  on  the 
llth  to  Surrattsville  exclusively  upon  her  own 
private  and  lawful  business.  Can  any  one  tell, 
if  that  be  so,  how  it  conies  that  she  should  apply 
to  Booth  for  a  conveyance,  and  how  it  comes 
that  he,  of  his  own  accord,  having  no  convey 
ance  to  furnish  her,  should  send  her  ten  dollars 
with  which  to  procure  it?  There  is  not  tho 
slightest  indication  that  Booth  was  under  any 
obligation  to  her,  or  that  she  had  any  claim 
upon  him,  either  for  a  conveyance  or  for  the 
means  with  which  to  procure  one,  except  that 
he  was  bound  to  contribute,  being  the  agent  of 
the  conspirators  in  Canada  and  Richmond, 
whatever  money  might  be  necessary  to  the  con 
summation  of  this  infernal  plot.  On  that  day, 
the  llth  of  April,  John  H.  Surratt  had  not  re 
turned  from  Canada  with  the  funds  furnished 
by  Thompson! 

Upon  that  journey  of  the  llth,  the  accused, 
Mary  E.  Surratt,  met  the  witness,  John  M. 
Lloyd,  at  Uniontown.  She  called  him;  he  got 
out  of  his  carriage  and  came  to  her.  and  she 
whispered  to  him  in  so  low  a  tone  that  her  at- 


ARGUMENT    OF   JOHN   A.    BINGHAM. 


393 


tendant  could  not  hear  her  words,  though  Lloyd, 
to  whom  they  were  spoken,  did  distinctly  hear 
them,  and  testifies  that  she  told  him  he  should 
have  those  "shooting-irons"  ready,  meaning 
the  carbines  which  her  son  and  Herold  and  At- 
zerodt  had  deposited  with  him,  and  added  the 
reason,  "for  they  would  soon  be  called  for." 
On  the  day  of  the  assassination  she  again  sent 
for  Booth,  had  an  interview  with  him  in 
her  own  house,  and  immediately  went  again  to 
Surrattsville,  and  then,  at  about  six  o'clock  in 
the  afternoon,  she  delivered  to  Lloyd  a  field- 
glass  and  told  him  "  to  have  two  bottles  of 
whisky  and  the  carbines  ready,  as  they  would 
be  called  for  that  night."  Having  thus  per 
fected  the  arrangement,  she  returned  to  Wash 
ington  to  her  own  house,  at  about  half-past 
eight  o'clock  in  the  evening,  to  await  the  final 
result.  How  could  this  woman  anticipate,  on 
Friday  afternoon,  at  six  o'clock,  that  these  arms 
would  be  called  for  and  would  be  needed  that 
night,  unless  she  was  in  the  conspiracy  and 
knew  the  blow  was  to  be  struck,  and  the  flight 


of  the  assassins  attempted  by  that  route  ? 
not  the  private  conversation  which  Booth 


Was 
held 


with  her  in  her  parlor  on  the  afternoon  of  the 
14th  of  April,  just  before  she  left  on  this  busi 
ness,  in  relation  to  the  orders  she  should  give 
to  have  the  arms  ready? 

An  endeavor  is  made  to  impeach  Lloyd.  But 
the  Court  will  observe  that  no  witness  has  been 
called  who  contradicts  Lloyd's  statement  in  any 
material  matter;  neither  has  his  general  char 
acter  for  truth  been  assailed.  How,  then,  is  he 
impeached?  Is  it  claimed  that  his  testimony 
shows  that  he  was  a  party  to  the  conspiracy? 
Then  it  is  conceded  by  those  who  set  up  any 
such  pretence  that  there  was  a  conspiracy.  A 
conspiracy  between  whom  ?  There  can  be  no 
conspiracy  without  the  co-operation  or  agree 
ment  of  two  or  more  persons.  Who  were  the 
other  parties  to  it?  Was  it  Mary  E.  Surratt? 
Was  it  John  H.  Surratt,  George  A.  Atzerodt, 
David  E.  Herold?  Those  are  the  only  persons, 


any  other  witness  discloses,  with  whom  he  had 
any  communication  whatever  on  any  subject 
immediately  or  remotely  touching  this  con 
spiracy  before  the  assassination.  His  receipt 
and  concealment  of  the  arms  are  unexplained 
evidence  that  he  was  in  the  conspiracy. 

The  explanation  is  that  he  was  dependent 
upon  Mary  E.  Surratt;  was  her  tenant;  and 
his  declaration,  given  in  evidence  by  the  ac 


cused  herself,  is  that 
brought  this  trouble 


'  she  had  ruined  him,  and 
upon  him."     But  because 


he  was  weak  enough,  or  wicked  enough,  to  be 
come  the  guilty  depositary  of  these  arms,  and  to 
deliver  them  on  the  order  of  Mary  E.  Surratt  to 
the  assassins,  it  does  not  follow  that  he  is  not  to 
he  believed  on  oath.  It  is  said  that  he  concealed 
the  facts  that  the  arms  had  been  left  and  called 
for.  He  so  testifies  himself,  but  he  gives  the 
reason  that  he  did  it  only  from  apprehension  of 
danger  to  his  life.  If  he  were  in  the  conspiracy, 
his  general  credit  being  unchallenged,  his  tes 
timony  being  uncontradicted  in  any  material 
matter,  he  is  to  be  believed,  and  can  not  be  dis- 


not  corroborated  touching  the  deposit  of  arms 
by  the  fact  that  the  arms  are  produced  in  court, 
one  of  which  was  found  upon  the  person  of 
Booth  at  the  time  he  was  overtaken  arid  slain, 
and  which  is  identified  as  the  same  which  had 
been  left  with  Lloyd  by  Herold,  Surratt  and  At 
zerodt?  Is  he  not  corroborated  in  the  fact  of 


the  first  interview 
joint   testimony   of 


with    Mrs.   Surratt  by  the 
Mrs.    Offut  and    Louis   J. 


Weichmann,  each  of  whom  testified  (and  they 
are  contradicted  by  no  one),  that  on  Tuesday, 
the  llth  day  of  April,  at  Uniontown,  Mrs.  Sur 
ratt  called  Mr.  Lloyd  to  come  to  her,  which  he 
did,  and  she  held  a  secret  conversation  with 
him?  Is  he  not  corroborated  as  to  the  last  con 
versation  on  the  14th  of  April  by  the  testimony 
of  Mrs.  Offut,  who  swears  that  upon  the  14th 
of  April  she  saw  the  prisoner,  Mary  E.  Surratt, 
at  Lloyd's  house,  approach  and  hold  conversa 
tion  with  him  ?  Is  he  not  corroborated  in  the 
fact,  to  which  he  swears,  that  Mrs.  Surratt  de 
livered  to  him  at  that  time  the  field-glass  wrap 
ped  in  paper,  by  the  sworn  statement  of  Weich 
mann,  that  Mrs.  Surratt  took  with  her  on  that 
occasion  two  packages,  both  of  which  were 
wrapped  in  paper,  and  one  of  which  he  de 
scribes  as  a  small  package  about  six  inches  in 
diameter?  The  attempt  was  made  by  calling 
Mrs.  Offut  to  prove  that  no  such  package  wag 
delivered,  but  it  failed;  she  merely  states  that 
Mrs.  Surratt  delivered  a  package  wrapped  ill 
paper  to  her  after  her  arrival  there,  and  before 


Lloyd 
room. 


came  in,  which  was   laid   down   in  the 
But  whether  it  was  the  package  about 


which  Lloyd  testifies,  or  the  other  package  of 
the  two  about  which  Weichmann  testifies,  as  hav 
ing  been  carried  there  that  day  by  Mrs.  Surratt, 
does  not  appear.  Neither  does  this  witness 
pretend  to  say  that  Mrs.  Surratt,  after  she  had 
delivered  it  to  her,  and  the  witness  had  laid  it 
down  in  the  room,  did  not  again  take  it  up,  if 
it  were  the  same,  and  put  it  in  the  hands  of 
Lloyd.  She  only  knows  that  she  did  not  see 
that  done;  but  she  did  see  Lloyd  with  a  pack- 


so  far  as  his  own  testimony  or  the  testimony  of  age  like  the  one  she  received  in  the  room  before 


Mrs.  Surratt  left.  How  it  came  into  his  posses 
sion  she  is  not  able  to  state;  nor  what  the  pack 
age  was  that  Mrs.  Surratt  first  handed  her;  nor 
which  of  the  packages  it  was  she  afterward  saw 
in  the  hands  of  Lloyd. 

But  there  is  one  other  fact  in  this  case  that 
puts  forever  at  rest  the  question  of  the  guilty 
participation  of  the  prisoner,  Mrs.  Surratt,  in 
this  conspiracy  and  murder;  and  that  is,  that 
Payne,  who  had  lodged  four  days  in  her  house, 
who,  during  all  that  time,  had  sat  at  her  table, 
and  who  had  often  conversed  with  her,  when 
the  guilt  of  his  great  crime  was  upon  him,  and 
he  knew  not  where  else  he  could  so  safely  go  to 
find  a  co-conspirator,  and  he  could  trust  none 
that  was  not,  like  himself,  guilty,  with  even  the 
knowledge  of  his  presence,  under  cover  of 
darkness,  after  wandering  for  three  days  and 
nights,  skulking  before  the  pursuing  officers  of 
justice,  at  the  hour  of  midnight,  found  his  way 
to  the  door  of  Mrs.  Surratt,  rang  the  bell,  was 
admitted,  and  upon  being  asked,  "  Whom  do 
you  want  to  see?"  replied,  "Mrs.  Surratt."  He 


believed  if  his  testimony  is  substantially  cor-  was  then  asked  by  the  officer.  Morgan,  what  he 
roberated  by  other  reliable  witnesses.     Is  he   came  at  that  time  of  night  for,  to  which  he  re- 


394 


THE    CONSPIRACY   TRIAL. 


plied,  "  to  dig  a  gutter  in  the  morning ;  Mrs. 
Surratt  had  sent  for  him."  Afterward  he  said 
"  Mrs.  Surratt  knew  he  was  a  poor  man  and 
came  to  him."  Being  asked  where  he  last  worked, 
he  replied,  "sometimes  on  'I'  street,"  and 
where  he  boarded,  he  replied,  "  he  had  no  board 
ing-house,  and  was  a  poor  man  who  got  his 
living  with  the  pick  "  which  he  bore  upon  his 
shoulder,  having  stolen  it  from  the  intrench- 
ments  of  the  Capital.  Upon  being  pressed 
again  why  he  came  there  at  that  time  of  night 
to  go  to  work,  he  answered  that  he  simply 
called  to  see  what  time  he  should  go  to  work  in 
the  morning.  Upon  bei'ng  told  by  the  officer, 
who,  fortunately,  had  preceded  him  to  this 
house,  that  he  would  have  to  go  to  the  Provost 
Marshal's  office,  he  moved  and  did  not  answer, 
whereupon  Mrs.  Surratt  was  asked  to  step  into 
the  hull  and  state  whether  she  knew  this  man. 
Raising  her  right  hand,  she  exclaimed,  "Before 
God,  sir,  I  have  not  seen  that  man  before;  I 
have  not  hired  him;  I  do  not  know  anything 
about  him."  The  hall  was  brilliantly  lighted. 

If  not  one  word  had  been  said,  the  mere  act 
of  Payne,  in  flying  to  her  house  for  shelter, 
would  have  borne  witness  against  her  strong 
as  proofs  from  Holy  Writ.  But  when  she  de 
nies,  after  hearing  his  declarations  that  she 
had  sent  for  him,  or  that  she  had  gone  to  him 
and  hired  him,  and  calls  her  God  to  witness 
that  she  had  never  seen  him,  and  knew  nothing 
of  him,  when  in  point  of  fact,  she  had  seen 
him  for  four  successive  days  in  her  own  house, 
in  the  same  clothing  which  he  then  wore,  who 
can  resist  for  a  moment  the  conclusion  that 
these  parties  were  alike  guilty  ? 

The  testimony  of  Spangler's  complicity  is 
conclusive  and  brief.  It  was  impossible  to 
hope  for  escape  after  assassinating  the  Presi 
dent,  and  such  others  as  might  attend  him  in 
Ford's  theater,  without  arrangements  being 
first  made  to  aid  the  flight  of  the  assassin,  and, 
to  some  extent,  prevent  immediate  pursuit. 

A  stable  was  to  be  provided  close  to  Ford's 
theater,  in  which  the  horses  could  be  concealed, 
and  kept  ready  for  the  assassin's  use  whenever 
the  murderous  blow  was  struck.  Accordingly, 
Booth  secretly,  through  Maddox,  hired  a  stable 
in  the  rear  of  the  theater,  and  connecting  with 
it  by  an  alley,  as  early  as  the  1st  of  January 
last,  showing  that  at  that  time  he  had  concluded, 
notwithstanding  all  that  has  been  said  to  the 
contrary,  to  murder  the  President  in  Ford's 
theater,  and  provide  the  means  for  immediate 
and  successful  flight.  Conscious  of  his  guilt, 
he  paid  the  rent  for  this  stable  through  Maddox, 
month  by  month,  giving  him  the  money.  He 
employed  Spangler,.  doubtless  for  the  reason 
that  he  could  trust  him  with  the  secret,  as  a 
carpenter  to  fit  up  this  shed,  so  that  it  would 
furnish  room  for  two  horses,  and  provided  the 
door  with  lock  and  key.  Spangler  did  this 
work  for  him.  Then  it  was  necessary  that  a 
carpenter,  having  access  to  the  theater,  should 
be  employed  by  the  assassin  to  provide  a  bar 
for  the  outer  door  of  the  passage  leading  to  the 
President's  box,  so  that  when  he  entered  upon 
his  work  of  assassination  he  would  be  secure 
from  interruption  from  the  rear.  By  the  evi 
dence  it  is  shown  that  Spangler  was  in  the  box 


in  which  the  President  was  murdered  on  the 
afternoon  of  the  14th  of  April,  and  when  there 
damned  the  President  and  General  Grant,  and 
said  the  President  ought  to  be  cursed,  he  had 
got  so  many  good  men  killed,  showing  not  only 
his  hostility  to  the  President,  but  the  cause  of 
it,  that  he  had  been  faithful  to  his  oath,  and 
had  resisted  that  great  rebellion,  in  the  interest 
of  which  his  life  was  about  to  be  sacrificed  by 
this  man  and  his  co-conspirators.  In  perform 
ing  the  work,  which  had  doubtless  been  in 
trusted  to  him  by  Booth,  a  mortise  was  cut  in 
the  wall.  A  wooden  bar  was  prepared,  one 
end  of  which  could  be  readily  inserted  in  the 
mortise  and  the  other  pressed  against  the  edge 
of  the  door,  on  the  inside,  so  as  to  prevent  its 
being  opened.  Spangler  had  the  skill  and  the 
opportunity  to  do  that  work  and  all  the  addi 
tional  work  which  was  done. 

It  is  in  evidence  that  the  screws  in  "the 
keepers"  to  the  locks  on  each  of  the  inner 
doors  of  the  box  occupied  by  the  President  were 
drawn.  The  attempt  has  been  made,  on  behalf 
of  the  prisoner,  to  show  that  this  was  done  some 
time  before,  accidentally,  and  with  no  bad  de 
sign,  arid  had  not  been  repaired  by  reason  of 
inadvertence;  but  that  attempt  has  utterly 
failed,  because  the  testimony  adduced  for  that 
purpose  relates  exclusively  to  but  one  of  the  two 
inner  doors,  while  the  fact  is  that  the  screws 
were  drawn  in  both,  and  the  additional  precau 
tion  taken  to  cut  a  small  hole  through  one  of 
these  doors,  through  which  the  party  approach 
ing,  and  while  in  the  private  passage  would  be 
enabled  to  look  into  the  box  and  examine  the 
exact  posture  of  the  President  before  entering. 
It  was  also  deemed  essential,  in  the  execution 
of  this  plot,  that  some  one  should  watch  at  the 
outer  door,  in  the  rear  of  the  theater,  by  which 
alone  the  assassin  could  hope  for  escape.  It 
was  for  this  work  Booth  sought  to  employ 
Chester  in  January,  offering  $3,000  down  of  the 
money  of  his  join  ploy  ers,  and  the  assurance  that 
he  should  never  want.  What  Chester  refused 
to  do,  Spangler  undertook  and  promised  to  do. 
When  Booth  brought  his  horse  to  the  rear  door 
of  the  theater,  on  the  evening  of  the  murder,  he 
called  for  Spangler.  who  went  to  him,  when 
Booth  was  heard  to  say  to  him,  "Ned,  you'll 
help  me  all  you  can,  won't  you?"  To  which 
Spangler  replied,  "Oh,  yes." 

When  Booth  made  his  escape,  it  is  testified  by 
Colonel  Stewart,  who  pursued  him  across  the 
stage  and  out  through  the  same  door,  that,  as  he 
approached  it,  some  one  slammed  it  shut.  Rit- 
terspaugh,  who  was  standing  behind  the  scenes 
when  Booth  fired  the  pistol  and  fled,  saw  Booth 
run  down  the  passage  toward  the  back  door, 
and  pursued  him;  but  Booth  drew  his  knife 
upon  him  and  passed  out,  slamming  the  door 
after  him.  Ritterspaugh  opened  it  and  went 
through,  leaving  it  open  behind  him,  leaving 
Spangler  inside,  and  in  a  position  from  which 
he  readily  could  have  reached  the  door.  Rit 
terspaugh  also  states  lhat  very  quickly  after 
he  had  passed  through  this  door  he  was  followed 
by  a  large  man,  the  first  who  followed  him,  and 
who  was.  doubtless,  Colonel  Stewart.  Stewart 
is  very  positive  that  he  saw  this  door  slammed  ; 
that  he  himself  was  constrained  to  open  it,  and 


ARGUMENT    OF    JOHN   A.    BINGHAM. 


395 


had  some  difficulty  in  opening  it.  He  also  testi 
fies  that  as  he  approached  the  door  a  man  stood 
near  enough  to  have  thrown  it  to  with  his 
band,  and  this  man,  the  witness  believes,  was 
the  prisoner  Spangler.  Ritterspaugh  has  sworn 
that  he  left  the  door  open  behind  him  when  he 
went  out,  and  that  he  was  first  followed  by 
the  large  man,  Colonel  Stewart.  Who  slammed 
that  door  behind  Ritterspaiigh?  It  was  not 
Ritterspaugh;  it  could  not  have  been  Booth,  for 
Ritterspaugh  swears  that  Booth  was  mounting 
his  horse  at  the  time;  and  Stewart  swears  that 
Booth  was  upon  his  horse  when  he  came  out. 
That  it  was  Spangler  who  slammed  the  door 
after  Ritterspaugh  may  not  only  be  inferred 
from  Stewart's  testimony,  but  it  is  made  very 
clear  by  his  own  conduct  afterward,  upon  the 
return  of  Ritterspaugh  to  the  stage.  The  door 
being  then  open,  and  Ritterspaugh  being  asked 
which  way  Booth  went,  had  answered.  Rit 
terspaugh' says:  "Then  I  came  back  on  the 
stage,  where  I  had  left  Edward  Spangler;  he 
hit  me  on  the  face  with  his  hand,  and  said, 
'Don't  say  which  way  he  went.'  I  asked  him 
what  he  meant  by  slapping  me  in  the  mouth. 
He  said,  'For  God's  sake,  shut  up.'" 

The  testimony  of  Withers  is  adroitly  handled, 
to  throw  doubt  upon  these  facts.  It  can  not 
avail,  for  Withers  says  he  was  knocked  in  the 
scene  by  Booth,  and  when  he  "come  to"  he  got 
a  side  view  of  him.  A  man  knocked  down 
and  senseless,  on  "coming  to"  might  mistake 
anybody,  by  a  side  view,  for  Booth. 

An  attempt  has  been  made  by  the  defense  to 
discredit  this  testimony  of  Ritterspaugh,  by 
showing  his  conti-adictory  statements  to  Gifford, 
Carlan  and  Lamb,  neither  of  whom  do,  in  fact, 
contradict  him,  but  substantially  sustain  him. 
None  but  a  guilty  man  would  have  met  the  wit 
ness  with  a  blow  for  stating  which  way  the  as 
sassin  had  gone.  A  like  confession  of  guilt 
was  made  by  Spangler  when  the  witness  Miles, 
the  same  evening,  and  directly  after  the  assas 
sination,  came  to  the  back  door,  where  Sparfg- 
ler  was  standing,  with  others,  and  asked  Spang 
ler  who  it  was  that  held  the  horse,  to  which 
Spangler  replied:  "Hush;  don't  say  anything 
about  it."  He  confessed  his  guilt  again  when 
he  denied  to  Mary  Anderson  the  fact,  proved 
here  beyond  all  question,  that  Booth,  had  called 
him  when  he  came  to  that  door  with  his  horse, 
using  the  emphatic  words,  "No;  he  did  not;  he 
did  not  call  me."  The  rope  comes  to  bear  wit 
ness  against  him,  as  did  the  rope  which  Atze- 
rodt,  and  Herold,  and  John  H.  Surratt,  had 
carried  to  Surrattsville,  and  deposited  there 
with  the  carbines. 

It  is  only  surprising  that  the  ingenious  coun 
sel  did  not  attempt  to  explain  the  deposit  of  the 
rope  at  Surrattsville  by  the  same  method  that 
he  adopted  in  explanation  of  the  deposit  of 
this  rope,  some  sixty  feet  long,  found  in  the 
cnrpet-sack  of  Spanglei-,  unaccounted  for,  save 
bv  some  evidence  which  tends  to  show  that  he 
may  have  carried  it  away  from  the  theater. 

It  is  not  needful  to  take  time  in  the  recapit 
ulation  of  the  evidence,  which  shows  conclu 
sively  that  David  E.  Herold  was  one  of  these 
.conspirators.  His  continued  association  with 
Booth,  with  Atzerodt,  his  visits  to  Mrs.  Sur- 


ratt's,  his  attendance  at  the  theater  with  Payne, 
Surratt  and  Atzerodt,  his  connexion  with  Atze 
rodt  on  the  evening  of  the  murder,  riding  with 
him  on  the  street  in  the  direction  of,  and  near 
to,  the  theater  at  the  hour  appointed  for  the 
work  of  assassination,  and  his  final  flight  and 
arrest,  show  that  he,  in  common  with  all  the 
other  parties  on  trial,  and  all  the  parties  named 
upon  your  record  not  upon  trial,  had  combined 
and  confederated  to  kill  and  murder  in  the  in 
terests  oftthe  rebellion,  as  charged  and  specified 
against  them. 

That  this  conspiracy  was  entered  into  by  all 
these 'parties,  both  present  and  absent,  is  thus 
proved  by  the  acts,  meetings,  declarations  and 
correspondence  of  all  the  parties,  beyond  any 
doubt  whatever.  True,  it  is  circumstantial  evi 
dence,  but  the  Court  will  remember  the  rule 
before  recited,  that  circumstances  can  not  lie; 
that  they  are  held  sufficient  in  every  court 
where  justice  is  judicially  administered  to  es 
tablish  the  fact  of  a  conspiracy.  I  shall  take 
no  further  notice  of  the  remark  made  by  the 
learned  counsel  who  opened  for  the  defense, 
and  which  has  been  followed  by  several  of  his 
associates,  that,  under  the  Constitution,  it  re 
quires  two  witnesses  to  prove  the  overt  act  of 
high  treason,  than  to  say,  this  is  not  a  charge 
of  high  treason,  but  of  a  treasonable  conspir 
acy,  in  aid  of  a  rebellion,  with  intent  to  kill 
and  murder  the  Executive  officer  of  the  United 
States,  and  commander  of  its  armies,  and  of 
the  murder  of  the  President,  in  pursuance  of 
that  conspiracy,  and  with  the  intent  laid,  etc. 
Neither  by  the  Constitution,  nor  by  the  rules  of 
the  common  law,  is  any  fact  connected  with 
this  allegation  required  to  be  established  by 
the  testimony  of  more  than  one  witness.  I 
might  say,  however,  that  every  substantive 
averment  against  each  of  the  parties  named 
upon  this  record  has  been  established  by  the 
testimony  of  more  than  one  witness. 

That  the  several  accused  did  enter  into  this 
conspiracy  with  John  Wilkes  Booth  and  John 
H.  Surratt,  to  murder  the  officers  of  this  Gov 
ernment  named  upon  the  record,  in  pursuance 
of  the  wishes  of  their  employers  and  instiga 
tors  in  Richmond  and  Canada,  and  with  intent 
thereby  to  aid  the  existing  rebellion  and  sub 
vert  the  Constitution  and  laws  of  the  United 
States,  as  alleged,  is  no  longer  an  open  ques 
tion. 

The  intent  as  laid  was  expressly  declared 
by  Sanders  in  the  meeting  of  the  conspirators 
at  Montreal  in  February  last,  by  Booth  in  Vir 
ginia  and  New  York,  and  by  Thompson  to  Con- 
over  and  Montgomery  ;  but  if  there  were  no 
testimony  directly  upon  this  point,  the  law 
would  presume  the  intent,  for  the  reason  that 
such  was  the  natural  and  necessary  tendency 
and  manifest  design  of  the  act  itself. 

The  learned  gentleman    (Mr.  Johnson)  says 

the  Government  has  survived  the  assassination 

of  the  President,  and  thereby    would  have  you 

infer  that  this  conspiracy  was  not  entered  into 

and  attempted  to  be    executed  with  the  intent 

laid.     With  as  much  show  of  reason,  it   might 

|  be    said    that  because   the    Government   of  the 

;  United    States    has    survived   this    unmatched 

I  rebellion,  it  therefore  results  that  the  rebel  con- 


396 


THE    CONSPIRACY   TRIAL. 


spirators  waged  war  upon  the  Government  with 
no  purpose  or  intent  thereby  to  subvert  it.  By 
the  law,  we  have  seen  that  without  any  direct 
evidence  of  previous  combination  and  agree 
ment  between  these  parties,  the  conspiracy 
might  be  established  by  evidence  of  the  acts 
of  the  prisoners,  or  of  any  others  with  whom 
they  co-operated,  concurring  in  the  execution 
of  the  common  design.  Roscoe,  416. 

Was  there  co-operation  between  the  several 
accused  in  the  execution  of  this  conspiracy  ? 
That  there  was,  is  as  clearly  established  by 
the  testimony  as  is  the  fact  that  Abraham  Lin 
coln  was  killed  and  murdered  by  John  Wilkes 
Booth.  The  evidence  shows  that  all  of  the 
accused,  save  Mudd  and  Arnold,  were  in 
Washington  on  the  14th  of  April,  the  day  of 
the  assassination,  together  with  John  Wilkes 
Booth  and  John  H.  Surratt ;  that  on  that  day 
Booth  had  a  secret  interview  with  the  prisoner, 
Mary  E.  Surratt;  that  immediately  thereafter 
she  went  to  Surratt  sville  to  perform  her  part 
of  the  preparation  necessary  to  the  successful 
execution  of  the  conspiracy,  and  did  make  that 
preparation ;  that  John  H.  Surratt  had  ai-rived 
here  from  Canada,  notifying  the  parties  that 
the  price  to  be  paid  for  this  great  crime  had 
been  provided  for,  at  least  in  part,  by  the  de 
posit  receipts  of  April  6th  for  $180,000,  pro 
cured  by  Thompson,  of  the  Ontario  Bank,  Mon 
treal,  Canada;  that  he  was  also  prepared  to 
keep  watch,  or  strike  a  blow,  and  ready  for 
the  contemplated  flight ;  that  Atzerodt,  on  the 
afternoon  of  that  day,  was  seeking  to  obtain 
a  horse,  the  better  to  secure  his  own  safety  by 
flight,  after  he  should  have  performed  the  task 
which  he  had  voluntarily  undertaken  by  con 
tract  in  the  conspiracy — the  murder  of  An 
drew  Johnson,  then  Vice-President  of  the 
United  States ;  that  he  did  procure  a  horse  for 
that  purpose  at  Naylor's  and  was  seen  about 
nine  o'clock  in  the  evening  to  ride  to  the  Kirk- 
wood  House,  where  the  Vice-President  then 
was,  dismount,  and  enter.  At  a  previous  hour 
Booth  was  in  the  Kirkwood  House,  and  left 
his  card,  now  in  evidence,  doubtless  intended 
to  be  sent  to  the  room  of  the  Vice-President, 
and  which  was  in  these  words:  "Don't  wish 
to  disturb  you.  Are  you  at  home?  J.  Wilkes 
Booth."  Atzerodt,  when  he  made  application 
at  Brooks'  in  the  afternoon  for  the  horse,  said 
to  Weichmann,  who  was  there,  he  was  going  to 
ride  in  the  country,  and  that  "he  was  going  to 
get  a  horse  and  send  for  Payne."  He  did  get 
a  horse  for  Payne,  as  well  as  for  himself;  for  it 
is  proven  that  on  the  12th  he  was  seen  in  Wash 
ington,  riding  the  horse  which  had  been  pro 
cured  by  Booth,  in  company  with  Mudd,  last 
November,  from  Gardner.  A  similar  horse 
was  tied  before  the  door  of  Mr.  Seward  on  the 
night  of  the  murder,  was  captured  .after  the 
flight  of  Payne,  who  was  seen  to  ride  away, 
and  which  horse  is  now  identified  as  the  Gard 
ner  horse.  Booth  also  procured  a  horse  on  the 
same  day,  took  it  to  his  stable  in  the  rear  of 
the  theater,  where  he  had  an  interview  with 
Spangler,  and  where  he  concealed  it.  Herold, 
too,  obtained  a  horse  in  the  afternoon,  and  was 
seen  between  nine  and  ten  o'clock  riding  with 
Atzerodt  down  the  Avenue  from  the  Treasury, 


;  then  up  Fourteenth  and  down  F  street,  passing 
:  close  by  Ford's  theater. 

O'Laughlin  had  come  to  Washington  the  day 
^before,  had  sought  out  his  victim,  General 
I  Grant,  at  the  house  of  the  Secretary  of  War, 
j  that  he  might  be  able  with  certainty  to  identify 
I  him,  and  at  the  very  hour  when  these  prepa 
rations  were  going  on,  was  lying  in  wait  at 
j  liullman's,  on  the  Avenue,  keeping  watch,  and 
j  declaring,  as  he  did,  at  about  ten  o'clock  P.  M., 
|  when  told  that  the  fatal  blow  had  been  struck 
jby  Booth,  "I  don't  believe  Booth  did  it."  Dur 
ing  the  day,  and  the  night  before,  he  had  been 
visiting  Booth,  and  doubtless  encouraging  him, 
and  at  that  very  hour  was  in  position,  at  a  con 
venient,  distance,  to  aid  and  protect  him  in  his 
flight,  as  well  as  to  execute  his  own  part  of  the 
conspiracy  by  inflicting  death  upon  General 
Grant,  who  happily  was  not  at  the  theater  nor 
in  the  city,  having  left  the  city  that  day. 
Who  doubts  that,  Booth  having  ascertained  in 
the  course  of  the  day,  that  General  Grant 
would  not  be  present  at  the  theater,  O'Laugh 
lin,  who  was  to  murder  General  Grant,  instead 
of  entering  the  box  with  B«oth,  was  detailed 
to  lie  in  wait,  and  watch  and  support  him. 

His  declarations  of  his  reasons  for  changing 
his  lodgings  here  and  in  Baltimore,  after  the 
murder,  so  ably  and  so  ingeniously  presented 
in  the  argument  of  his  learned  counsel  (Mr. 
Cox),  avail  nothing  before  the  blasting  fact  that 
he  did  change  his  lodgings,  and  declared  "he 
knew  nothing  of  the  affair  whatever."  O'Laugh 
lin,  who  lurked  here,  conspiring  daily  with 
Booth  and  Arnold  for  six  weeks  to  do  this 
murder,  declares  "he  knew  nothing  of  the 
affair."  O'Laughlin,  who  said  he  was  "  in  the 
oil  business,"  which  Booth  and  Surratt,  and 
Payne  and  Arnold,  have  all  declared  meant 
this  conspiracy,  says  he  "knew  nothing  of  the 
affair."  0  Laughlin,  to  whom  Booth  sent  the 
dispatches  of  the  13th  and  27th  of  March — 
O'Laughlin,  who  is  named  in  Arnold's  letter  as 
on%  of  the  conspirators,  and  who  searched  for 
General  Grant  on  Thursday  night,  laid  in  wait 
for  him  on  Friday,  was  defeated  by  that  Provi 
dence  "  which  shapes  our  ends,"  and  laid  in 
wait  to  aid  Booth  and  Payne,  declares  "he 
knows  nothing  of  the  matter."  Such  a  denial 
is  as  false  and  inexcusable  as  Peter's  denial 
of  our  Lord. 

Mrs.  Surratt  had  arrived  at  home,  from  the 
completion  of  her  part  of  the  plot,  about  half- 
past  eight  o'clock  in  the  evening.  A  few  mo 
ments  afterward  she  was  called  to  the  parlor, 
and  there  had  a  private  interview  with  some 
one  unseen,  but  whose  retreating  footsteps  were 
heard  by  the  witness  Weichmann.  This  was 
doubtless  the  secret  and  last  visit  of  John  H. 
Surratt  to  his  mother,  who  had  instigated  and 
encouraged  him  to  strike  this  traitorous  and 
murderous  blow  against  his  country. 

While  all  these  preparations  were  going  on, 
Mudd  was  awaiting  the  execution  of  the  plot, 
ready  to  faithfully  perform  his  part  in  secur 
ing  the  safe  escape  of  the  murderers.  Arnold 
was  at  his  post  at  Fortress  Monroe,  awaiting 
the  meeting  referred  to  in  his  letter  of  March 
27th,  wherein  he  says  they  were  not  "to  meet 
for  a  month  or  so,"  which  month  had  more  than 


ARGUMENT    OF   JOHN   A.    BINGHAM. 


397 


expired  on  the  day  of  the  murder,  for  his  letter 
and  the  testimony  disclose  that  this  month  of 
suspension  began  to  run  from  about  the  first 
week  in  March.  He  stood  ready  with  the 
arms  which  Booth  had  furnished  him  to  aid 
the  escape  of  the  murderers  by  that  route,  and 
secure  their  communication  with  their  employ 
ers.  He  had  given  the  assurance  in  that  letter 
to  Booth,  that  although  the  Government  "sus- 
picioned  them,"  and  the  undertaking  was  "be 
coming  complicated,"  yet  "  a  time  more  propi 
tious  would  arrive"  for  the  consummation  of 
this  conspiracy  in  which  he  "was  one"  with 
Booth,  and  when  he  would  "  be  better  prepared 
to  again  be  with  him." 

Such  were  the  preparations.  The  horses 
were  in  readiness  for  the  flight ;  the  ropes  were 
procured,  doubtless,  for  the  purpose  of  tying 
the  horses  at  whatever  point  they  might  be 
constrained  to  delay,  and  to  secure  their  boats 
to  their  moorings  in  making  their  way  across 
the  Potomac.  The  five  murderous  camp  knives, 
the  two  carbines,  the  eight  revolvers,  the  Der 
ringer,  in  Court  and  identified,  all  were  ready 
for  the  work  of  death.  The  part  that  each  had 
played  has  already  been  in  part  stated  in  this 
argument,  and  needs  no  repetition. 

Booth  proceeded  to  the  theater  about  nine 
o'clock  in  the  evening,  at  the  same  time  that  At- 
zerodt,  Payne  and  Herold  were  riding  the  streets, 
while  Surratt,  having  parted  with  his  mother 
at  the  brief  interview  in  her  parlor,  from  which 
his  retreating  steps  were  heard,  was  walking 
the  avenue,  booted  and  spurred,  and  doubtless 
consulting  with  O'Laughlin.  When  Booth 
reached  the  rear  of  the  theater,  he  called  Span- 
gler  to  him  (whose  denial  of  that  fact,  when 
charged  with  it,  as  proven  by  three  witnesses, 
is  very  significant),  and  received  from  Span- 
gler  his  pledge  to  help  him  all  he  could,  when 
with  Booth  he  entered  the  theater  by  the  stage 
door,  doubtless  to  see  that  the  way  was  clear 
from  the  box  to  the  rear  door  of  the  theater, 
and  look  upon  their  victim,  whose  exact  posi 
tion  they  could  study  from  the  stage.  After 
this- view,  Booth  passes  to  the  street,  in  front 
of  the  theater,  where,  on  the  pavement  with 
other  conspirators  yet  unknown,  among  them 
one  described  as  a  low-browed  villain,  he 
awaits  the  appointed  moment.  Booth  himself, 
impatient,  enters  the  vestibule  of  the  theater 
from  the  front,  and  asks  the  time.  He  is  re 
ferred  to  the  clock,  and  returns.  Presently, 
as  the  hour  of  ten  approached,  one  of  his  guilty 
associates  called  the  time;  they  wait;  again, 
as  the  moments  elapsed,  this  conspirator 
upon  watch  called  the  time;  again,  as  the  ap 
pointed  hour  draws  nigh,  he  calls  the  time ; 
and  finally,  when  the  fatal  moment  arrives,  he 
repeats  in  a  louder  tone,  "Ten  minutes  past 
ten  o'clock."  Ten  minutes  past  ten  o'clock  ! 
The  hour  has  come  when  the  red  right  hand  of 
these  murderous  conspirators  should  strike, 
and  the  dreadful  deed  of  assassination  be  done. 

Booth,  at  the  appointed  moment,  entered  the 
theater,  ascended  to  the  dress-circle,  passed  to 
the  right,  paused  a  moment,  looking  down, 
doubtless  to  see  if  Spangler  was  at  his  post, 
and  approached  the  outer  door  of  the  close  pas 
sage  leading  to  the  box  occupied  by  the  Presi 


dent,  pressed  it  open,  passed  in,  and  closed  the 
passage  door  behind  him.  Spangler's  bar  was 
in  its  place,  and  was  readily  adjusted  by  Booth 
in  the  mortise,  and  pressed  against  the  inner 
side  of  the  door,  so  that  he  was  secure  from  in 
terruption  from  without.  He  passes  on  to  the 
next  door,  immediately  behind  the  President, 
and  there  stopping,  looks  through  the  aperture 
in  the  door  into  the  President's  box,  and  delib 
erately  observes  the  precise  position  of  his  vic 
tim,  seated  in  the  chair  which  had  been  pre 
pared  by  the  conspirators  as  the  altar  for  the 
sacrifice,  looking  calmly  and  quietly  down  up 
on  the  glad  and  grateful  people  whom  by  his 
fidelity  he  had  saved  from  the  peril  which  had 
threatened  the  destruction  of  their  government, 
and  all  they  held  dear  this  side  of  the  grave, 
and  whom  he  had  come  upon  invitation  to  greet 
with  his  presence,  with  the  words  still  linger 
ing  upon  his  lips  which  he  had  uttered  with 
uncovered  head  and  uplifted  hand  before  God 
and  his  country,  when  on  the  4th  of  last  March 
he  took  again  the  oath  to  preserve,  protect  and 
defend  the  Constitution,  declaring  that  he  en 
tered  upon  the  duties  of  his  great  office  "  with 
malice  toward  none — with  charity  for  all."  In 
a  moment  more,  strengthened  by  the  knowledge 
that  his  co-conspirators  were  all  at  their  posts, 
seven  at  least  of  them  present  in  the  city,  two 
of  them,  Mudd  and  Arnold,  at  their  appointed 
places,  watching  for  his  coming,  this  hired  as 
sassin  moves  stealthily  through  the  door,  the 
fastenings  of  which  had  been  removed  to  facil 
itate  his  entrance,  fires  upon  his  victim,  and 
the  martyr  spirit  of  Abraham  Lincoln  ascends 
to  God. 

"  Treason  has  done  his  worst ;  nor  steel  nor  poison, 
Malice  domestic,  foreign  levy,  nothing 
Can  touch  him  further." 

At  the  same  hour,  when  these  accused  and 
their  co-conspirators  in  Richmond  and  Canada, 
by  the  hand  of  John  Wilkes  Booth,  inflicted 
this  mortal  wound  which  deprived  the  republic 
of  its  defender,  and  filled  this  land  from  ocean 
to  ocean  with  a  strange,  great  sorrow,  Payne, 
a  very  demon  in  human  form,  with  the  words 
of  falsehood  upon  his  lips,  that  he  was  the  bearer 
of  a  message  from  the  physician  of  the  venerable 
Secretary  of  State,  sweeps  by  his  servant,  en 
counters  his  son,  who  protests  that  the  assassin 
shall  not  disturb  his  father,  prostrate  on  a  bed 
of  sickness,  and  receives  for  answer  the  assas 
sin's  blow  from  "the  revolver  in  his  hand,  re 
peated  again  and  again,  rushes  into  the  room, 
is  encountered  by  Major  Seward,  inflicts  wound 
after  wound  upon  him  with  his  murderous  knife, 
is  encountered  by  Hansell  and  Robinson,  each 
of  whom  he  also  wounds,  springs  upon  the  de 
fenseless  and  feeble  Secretary  of  State,  stabs 
first  on  one  side  of  his  throat,  then  on  the  other, 
again  in  the  face,  and  is  only  prevented  from 
literally  hacking  out  his  life  by  the  persistence 
and  courage  of  the  attendant  Robinson.  He 
turns  to  flee,  and,  his  giant  arm  and  murderous 
hand  for  a  moment  paralyzed  by  the  conscious 
ness  ^f  guilt,  he  drops  his  weapons  of  death, 
one  in  the  house,  the  other  at  the  door,  where 
they  were  taken  up,  and  are  here  now  to  bear 
witness  against  him.  He  attempts  escape  on 
the  horse  which  Booth  and  Mudd  had  procured 


398 


THE    CONSPIRACY   TRIAL. 


of  Gardner — with   what   success   has   already  !  that  day,  who  had  committed  this  crime,  yet  it 
been  stated.  j  is  in  evidence  by  two  witnesses,  whose  truth- 

Atzerodt,  near  midnight,  returns  to  the  stable  j  fulness  no  man  questions,  that  upon  Mudd's  re- 
of  Naylor  the  horse  which  he  had  procured  for  j  turn  to  his  own  house,  that  afternoon,  he  stated 


this  work  of  murder,  having  been  interrupted 
in  the  execution  of  the  part  assigned  him  at  the 
Kirkwood  House,  by  the  timely  coming  of  citi- 
'zens  to  the  defense  of  the  Vice-President,  and 
creeps  into  the  Pennsylvania  House  at  two 
o'clock  in  the  morning  with  another  of  the  con 
spirators,  yet  unknown.  There  he  remained 
until  about  five  o'clock,  when  he  left,  found  his 
way  to  Georgetown,  pawned  one  of  his  revolv 
ers,  now  in  court,  and  fled  northward  into 
Maryland. 

He  is  traced  to  Montgomery  county,  to  the 
house  of  Mr.  Metz,  on  the  Sunday  succeeding 
the  murder,  where,  as  is  proved  by  the  testi 
mony  of  three  witnesses,  he  said  that  if  the  man 
that  was  to  follow  Gen.  Grant  had  followed  him, 
it  was  likely  that  Grant  was  shot.  To  one  of 
these  witnesses  (Mr.  Leaman)  he  said  he.  did 
not  think  Grant  had  been  killed  ;  or  if  he  had 
been  killed,  he  was  killed  by  a  man  who  got  on 
the  cars  at  the  same  time  that  Grant  did;  thus 
disclosing  most  clearly  that  one  of  his  co-con 
spirators  was  assigned  the  task  of  killing  and 


that  Booth  was  the  murderer  of  the  President, 
and  Boyle  the  mui-derer  of  Secretary  Seward, 
but  took  care  to  make  the  further  remark  that 
Booth  had  brothers,  and  he  did  not  know  which 
of  them  had  done  the  act.  When  did  Dr.  Mudd 
learn  that  Booth  had  brothers  ?  And  what  is 
still  more  pertinent  to  this  inquiry,  from  whom 
did  he  learn  that  either  John  Wilkes  Booth  or 
any  of  his  brothers  had  murdered  the  President  ? 
It  is  clear 
until  some 


that  Booth  remained   in   his  house 
time  in  the  afternoon  of  Saturday; 


that  Herold  left  the  house  alone,  as  one  of  the 
witnesses  states,  being  seen  to  pass  the  window; 
that  he  alone  of  those  two  assassins  was  in  the 
company  of  Dr.  Mudd  on  his  way  to  Bryantown. 
It  does  not  appear  when  Herold  returned  to 
Mudd's  house.  It  is  a  confession  of  Dr.  Mudd 
himself,  proven  by  one  of  the  witnesses,  that 
Booth  left  his  house  on  crutches,  and  went  in 
the  direction  of  the  swamp.  How  long  he  re 
mained  there,  and  what  became  of  the  horses 
which  Booth  and  Herold  rode  to  his  house,  and 
which  were  put  into  his  stable,  are  facts  no- 


murdering  Gen.  Grant,  and  that  Atzerodt  knew  j  where  disclosed  by  the  evidence.     The  owners 


that  Gen.  Grant  had  left  the  city  of  Washing 
ton,  a  fact  which  is  not  disputed,  on  the  Friday 
evening  of  the  murder,  by  the  evening  train. 
Thus  this  intended  victim  of  the  conspiracy  es- 


testify  that  they  have  never  seen  the  horses 
since.  The  accused  give  no  explanation  of  the 
matter,  and  when  Herold  and  Booth  were  cap 
tured  they  had  not  these  horses  in  their  posses- 


caped,  for  that  night,  the  knives  and  revolvers  [  sion.     How    comes    it   that,  on    Mudd's    return 
of  Atzerodt,  and  O'Laughlin,  and  Payne,  and 
Herold,  and  Booth,  and  John  II.  Surra tt,  and 


perchance,  Harper  and  Caldwell,  and  twenty 
others,  who  were  then  here  lying  in  wait  for  his 
life. 

In  the  meantime  Booth  and  Herold,  taking 
the  route  before  agreed  upon,  make  directly 
after  the  assassination,  for  the  Anacostia  bridge. 
Booth  crosses  first,  gives  his  name,  passes  the 
guard,  and  is  speedily  followed  by  Kerold. 
They  make  their  way  directly  to  Surrattsville, 
where  Herold  calls  to  Lloyd,  "Bring  out  those 
things,"  showing  that  there  had  been  communi 
cation  between  them  and  Mrs.  Surratt  after  her 
return.  Both  the  carbines  being  in  readiness, 
according  to  Mary  E.  Surratt's  directions,  both 
were  brought  out.  They  took  butone.  Booth  de 
clined  to  carry  the  other,  saying  that  his  limb  was 
broken.  They  then  declared  that  they  had  mur 
dered  the  President  and  the  Secretary  of  State. 
They  then  make  their  way  directly  to  the  house 
of  the  prisoner  Mudd,  assured  of  safety  and  se 
curity.  They  arrived  early  in  the  morning  be 
fore  day,  and  no  man  knows  at  what  hour  they 
left,.  Herold  rode  toward  Bi'yantown  with 
Mudd  about  three  o'clock  that  afternoon,  in  the 
vicinity  of  which  place  he  parted  with  him, 
remaining  in  the  swamp,  and  was  afterward 
seen  returning  the  same  afternoon  in  the  direc 
tion  of  Mudd's  house ;  about  which  time,  a  little 
before  sundown,  Mudd  returned  from  Bryan- 
town  toward  his  home.  This  village,  aA  the 
time  Mudd  was  in  it,  was  thronged  with  soldiers 
in  pursuit  of  the  murderers  of  the  President, 
and  although  great  care  has  been  taken  by  the 
defense  to  deny  that  any  one  said  in  the  pres 
ence  of  Dr.  Mudd,  either  there  or  elsewhere  on 


from  Bryantown,  on  the  evening  of  Saturday. 
in  his  conversation  with  Mr.  Hardy  and  Mr. 
Farrell,  the  witnesses  referred  to,  he  gave  the 
name  of  Booth  as  the  murderer  of  the  President 
and  that  of  Boyle  as  the  murderer  of  Secretary 
Seward  and  his  son,  and  carefully  avoided  inti 
mating  to  either  that  Booth  had  come  to  his 
house  early  that  day,  and  had  remained  there 
until  the  afternoon  ;  that  he  left  him  in  his 
house  and  had  furnished  him  a  razor  with  which 
Booth  attempted  to  disguise  himself  by  shaving 


off  his    mustache  ? 
upon    being    asked 


How  comes   it,   also,    that, 
by    those    two    witnesses 


whether  the  Booth  who  killed  the  President  was 
the  one  who  had  been  there  last  fall,  he  an 
swered  that  he  did  not  know  whether  it  was 
that  man  or  one  of  his  brothers,  but  he  under 
stood  he  had  some  brothers,  and  added,  that  if 
it  was  the  Booth  who  was  there  last  fall,  he  knew 
that  one,  but  concealed  the  fact  that  this  man 
had  been  at  his  house  on  that  day,  and  was  then 
at  his  house,  and  had  attempted,  in  his  presence, 
to  disguise  his  person?  He  was  sorry,  very 
sorry,  that  the  tiling  had  occurred,  but  not  so 
sorry  as  to  be  willing  to  give  any  evidence  to 
these  two  neighbors,  who  were  manifestly  hon 
est  and  upright  men,  that  the  murderer  had 
been  harbored  in  his  house  all  day,  and  was 
probably  at  that  moment,  as  his  own  subse 
quent  confession  shows,  lying  concealed  in  his 
house  or  near  by,  subject  to  his  call.  This  is 
the  man  who  undertakes  to  show  by  his  own 
declaration,  offered  in  evidence  against  my  pro 
test,  of  what  he  said  afterward,  on  Sunday 
afternoon,  the  16th,  to  his  kinsman,  Dr.  George 
D.  Mudd,  to  whom  he  then  stated  that  the  assas 
sination  of  the  President  was  a  most  damnable 


ARGUMENT   OF   JOHN   A.    BINGHAM. 


399 


act — a  conclusion  iu  which  most  men  will  agree 
with  him,  and  to  establish  which  his  testimony 
was  not  needed.  But  it  is  to  be  remarked  that 
this  accused  did  not  intimate  that  the  man  whom 
he  knew  the  evening  before  was  the  murderer 
had  found  refuge  in  his  house,  had  disguised 
his  person,  and  sought  concealment  in  the 
swamp  upon  the  crutches  which  he  had  pro 
vided  for  him.  Why  did  he  conceal  this  fact 
from  his  kinsman?  After  the  church  services 
were  over,  however,  in  another  conversation  on 
their  way  home,  he  did  tell  Dr.  George  Mudd 
that  two  suspicious  persons  had  been  at  his 
house,  who  had  come  there  a  little  before  day 
break  ou  Saturday  morning;  that  one  of  them 
had  a  broken  leg,  which  he  bandaged;  that 
they  got  something  to  eat  at  his  house;  that 
they  seemed  to  be  laboring  under  more  excite 
ment  than  probably  would  result  from  the  in 
jury  ;  that  they  said  they  came  from  Bryantown, 
and  inquired  the  way  to  Parson  Wilmer's;  that 
while  at  his  house  one  of  them  called  for  a  razor 
and  shaved  himself.  The  witness  says,  "I  do 
not  remember  whether  he  said  that  this  party 
shaved  off  his  whiskers  or  his  mustache,  but 
he  altered  somewhat,  or  probably  materially, 
his  features."  Finally,  the  prisoner,  Dr.  Mudd, 
told  this  witness  that  he,  in  company  with  the 
younger  of  the  two  men,  went  down  the  road 
toward  Bryantown  in  search  of  a  vehicle  to  take 
the  wounded  man  away  from  his  house.  How 
comes  it  that  he  concealed  in  this  conversation 
the  fact  proved,  that  he  went  with  Herold  to 
ward  Bryantown  and  left  Herold  outside  of  the 
town  ?  How  comes  it  that  in  this  second  con 
versation,  on  Sunday,  insisted  upon  here  with 
such  pertinacity  as  evidence  for  the  defense,  but 
which  had  never  been  called  for  by  the  prosecu 
tion,  he  concealed  from  his  kinsman  the  fact 
which  he  had  disclosed  the  day  before  to  Hardy 
and  Farrell,  that  it  was  Booth  who  assassinated 
the  President,  and  the  fact  which  is  now  dis 
closed  by  his  other  confessions  given  in  evi 
dence  for  the  prosecution,  that  it  was  Booth 
whom  he  had  sheltered,  concealed  in  his  house, 
and  aided  to  his  hiding  place  in  the  swamps  ? 
He  volunteers  as  evidence  his  further  statement, 
however,  to  this  witness,  that  on  Sunday  even 
ing  he  requested  the  witness  to  state  to  the  mili 
tary  authorities  that  two  suspicious  persons  had 
been  at  his  house,  and  see  if  anything  could  be 
made  of  it.  He  did  not  tell  the  witness  what 
became  of  Herold,  and  where  he  parted  with 
him  on  the  way  to  Bryantown.  How  comes  it 
that  when  he  was  at  Bryantown  on  the  Satur 
day  evening  before,  when  he  knew  that  Booth 
was  then  at  his  house,  and  that  Booth  was  the 
murderer  of  the  President,  he  did  not  himself 
state  it  to  the  military  authorities  then  in  that 
village,  as  he  well  knew  ?  It  is  difficult  to  see 
what  kindled  his  suspicions  on  Sunday,  if  none 
were  in  his  mind  on  Saturday,  when  he  was  in 
possession  of  the  fact  that  Booth  had  murdered 
the  President,  and  was  then  secreting  and  dis 
guising  himself  in  the  prisoner's  own  house. 

His  conversation  with  Gardner  on  the  same 
Sunday  at  the  church  is  also  introduced  here 
to  relieve  him  from  the  overwhelming  evidences 
of  his  guilt.  He  communicates  nothing  to 
Gardner  of  the  fact  that  Booth  had  been  iu  his 


house ;  nothing  of  the  fact  that  he  knew  the 
day  before  that  Booth  had  murdered  the  Presi 
dent;  nothing  of  the  fact  that  Booth  had  dis 
guised  or  attempted  to  disguise  himself;  nothing 
of  the  fact  that  he  had  gone  with  Booth's  asso 
ciate,  Herold,  in  search  of  a  vehicle,  the  more 
speedily  to  expedite  their  flight ;  nothing  of  the 
fact  that  Booth  had  found  concealment  in  the 
woods  and  swamp  near  his  house,  upon  the 
crutches  which  he  had  furnished  him.  He  con 
tents  himself  with  merely  stating  "that  we 
ought  to  raise  immediately  a  home  guard,  to 
hunt  up  all  suspicious  persons  passing  through 
our  section  of  country  and  arrest  them,  for 
there  were  two  suspicious  persons  at  my  house 
yesterday  morning." 

It  would  have  looked  more  like  aiding  justice 
and  arresting  felons  if  he  had  put  in  execution 
his  project  of  a  home  guard  on  Saturday,  and 
made  it  effective  by  the  arrest  of  the  man  then 
in  his  house  who  had  lodged  with  him  last  fall, 
with  whom  he  had  gone  to  purchase  one  of  the 
very  horses  employed  in  his  flight  after  the  as 
sassination,  whom  he,  visited  last  winter  in 
Washington,  and  to  whom  he  had  pointed  out 
the  very  route  by  which  he  had  escaped  by  way 
of  his  house,  whom  he  had  again  visited  on  the 
3d  of  last  March,  preparatory  to  the  commis 
sion  of  this  great  crime,  and  who  he  knew, 
when  he  sheltered  and  concealed  him  in  the 
woods  on  Saturday,  was  not  merely  a  suspicious 
person,  but  was,  in  fact,  the  murderer  and  as 
sassin  of  Abraham  Lincoln.  While  I  deem  it 
my  duty  to  say  here,  as  I  said  before,  when 
these  declarations,  uttered  by  the  accused  on. 
Sunday,  the  16th,  to  Gardner  and  George  D. 
Mudd,  were  attempted  to  be  offered  on  the  part 
of  the  accused,  that  they  are  in  no  sense  evi 
dence,  and  by  the  law  were  wholly  inadmissi 
ble,  yet  I  state  it  as  my  conviction  that,  being 
upon  the  record  upon  motion  of  the  accused 
himself,  so  far  as  these  declarations  to  Gardner 
and  George  D.  Mudd  go,  they  are  additional 
indications  of  the  guilt  of  the  accused,  in  this, 
that  they  are  manifestly  suppressions  of  the 
truth  and  suggestions  of  falsehood  and  decep 
tion  ;  they  are  but  the  utterances  and  confes 
sions  of  guilt. 

To  Lieutenant  Lovett,  Joshua  Lloyd,  and 
Simon  Gavacan,  who,  in  pursuit  of  the  mur 
derer,  visited  his  house  on  the  18th  of  April, 
the  Tuesday  after  the  murder,  he  denied  posi 
tively,  upon  inquiry,  that  two  men  had  passed 
his  house,  or  had  come  to  his  house  on  the 
morning  after  the  assassination.  Two  of  these 
witnesses  swear  positively  to  his  having  made 
the  denial,  and  the  other  says  he  hesitated  to 
answer  the  question  he  put  to  him ;  all  of  them 
agree  that  he  afterward  admitted  that  two  men 
had  been  there,  one  of  whom  had  a  broken 
limb,  which  he  had  set ;  and  when  asked  by 
this  witness  who  that  man  was,  he  said  he  did 
not  know — that  the  man  was  a  stranger  to  him, 
and  that  the  two  had  been  there  but  a  short 
time.  Lloyd  asked  him  if  he  had  ever  seen  any 
of  the  parties,  Booth,  Herold  and  Surratt,  and 
he  said  he  had  never  seen  them ;  while  it  is  pos 
itively  proved  that  he  was  acquainted  with 
John  H.  Surratt,  who  had  been  in  his  house; 
that  he  knew  Booth  and  had  introduced  Booth 


400 


THE    CONSPIRACY    TRIAL. 


to  Surratt  last  winter.  Afterward,  on  Friday, 
the  21st,  lie  admitted  to  Lloyd  that  he  had  been 
introduced  to  Booth  last  fall,  and  that  this  man, 
who  came  to  his  house  on  Saturday,  the  15th, 
remained  there  from  about  four  o'clock  in  the 
morning  until  about  four  in  the  afternoon  ;  that 
one  of  them  left  his  house  on  horseback,  and 
the  other  wa  king.  In  the  first  conversation  he 
denied  ever  having  seen  these  men. 

Colonel  Wells  also  testifies  that,  in  his  con 
versation  with  Dr.  Mudd  on  Friday,  the  21st, 
the  prisoner  said  that  he  had  gone  to  Bryan- 
town,  or  near  Bryan  town,  to  see  some  friends 
on  Saturday,  and  that  as  he  came  back  to  his 
own  house  he  saw  the  person  he  afterward  sup 
posed  to  be  Herold  passing  to  the  left  of  his 
house  toward  the  barn,  but  that  he  did  not  see 
the  other  person  at  all  after  he  left  him  in  his 
own  house,  about  one  o'clock.  If  this  statement 
be  true,  how  did  Dr.  Mudd  see  the  same  person 
leave  his  house  on  crutches  ?  He  further  stated 
to  this  witness  that  he  returned  to  his  own 
house  about  four  o'clock  in  the  afternoon;  that  he 
did  not  know  this  wounded  man ;  said  he  could 
not  recognize  him  from  the  photograph  which 
is  of  record  here,  but  admitted  that  he  had  met 
Booth  some  time  in  November,  when  he  had 
some  conversation  with  him  about  lands  and 
horses  ;  that  Booth  had  remained  with  him  that 
night  in  November,  and  on  the  next  day  had 
purchased  a  horse.  He  said  he  had  not  again 
seen  Booth  from  the  time  of  the  introduction 
in  November  up  to  his  arrival  at  his  house  on 
the  Saturday  morning  after  the  assassination. 
Is  not  this  a  confession  that  he  did  see  John 
Wilkes  Booth  on  that  morning  at  his  house, 
and  knew  it  was  Booth?  If  he  did  not  know 
him,  how  came  he  to  make  this  statement  to  the 
witness :  that  "  he  had  not  seen  Booth  after 
November  prior  to  his  arrival  there  on  the  Sat 
urday  morning '?" 

He  had  said  before  to  the  same  witness,  he 
did  not  know  the  wounded  man.  He  said 
further  to  Colonel  Wells,  that  when  he  went  up 
stairs  after  their  arrival,  he  noticed  that  the 
person  he  supposed  to  be  Booth  had  shaved  off 
his  mustache.  Is  it  not  inferable  from  this 
declaration  that  he  then  supposed  him  to  be 
Booth  ?  Yet  he  declared  the  same  afternoon, 
and  while  Booth  was  in  his  own  house,  that 
Booth  was  the  mui'derer  of  the  President.  One 
of  the  most  remarkable  statements  made  to  this 
witness  by  the  prisoner  was  that  he  heard  for 
the  first  time  on  Sunday  morning,  or  late  in  the 
evening  of  Saturday,  that  the  President  had 
been  murdered !  From  whom  did  he  hear  it  ? 
The  witness  (Colonel  Wells)  volunteers  his 
"impression  ;'  that  Dr.  Mudd  had  said  he  heard 
it  after  the  persons  had  left  his  house.  If  the 
"  impression  "  of  the  witness  thus  volunteered  is 
to  be  taken  as  evidence — and  the  counsel  for  the 
accused,  judging  from  their  manner,  seem  to 
think  it  ought  to  be — let  this  question  be  an 
swered  :  how  could  Dr.  Mudd  have  made  that  im 
pression  upon  anybody  truthfully,  when  it  is 
proved  by  Farrell  and  Hardy  that  on  his  return 
from  Bryantown,  on  Saturday  afternoon,  he  not 
only  stated  that  the  President,  Mr.  Seward  and 
his  son  had  been  assassinated,  but  that  Boyle 
had  assassinated  Mr.  Seward,  and  Booth  had 


!  assassinated  the  President?  Add  to  this  the 
!  fact  that  he  said  to  this  witness  that  he  left  his 
!  own  house  at  one  o'clock,  and  when  lie  returned 
1  the  men  were  gone,  yet  it  is  in  evidence,  by 
his  own  declarations,  that  Booth  left  his  house 
|  at  four  o'clock  on  crutches,  and  he'  must  have 
I  been  there  to  have  seen  it,  or  he  could  not  have 
:  known  the  fact. 

Mr.  Williams  testifies  that  he  was  at  Mudd' 3 
!  house  on  Tuesday,  the  18th  of  April,  when  he  said 
I  that  strangers  had  not  been  that  way,  and  also 
declared  that  he  heard,  for  the  first  time,  of  the 
assassination  of  the  President  on  Sunday  morn 
ing,  at  church.  Afterward,  on  Friday,  the 
21st,  Mr.  Williams  asked  him  concerning  the 
men  who  had  been  at  his  house,  one  of  whom 
had  a  broken  limb,  and  he  confessed  they  had 
been  there.  Upon  being  asked  if  they  were 
Booth  and  Herold,  he  said  they  were  not — that 
he  knew  Booth.  I  think  it  is  fair  to  conclude 
|  that  he  did  know  Booth,  when  we  consider  the 
testimony  of  Weichmann,  of  Norton,  of  Evans, 
and  all  the  testimony  just  referred  to,  wherein 
he  declares,  himself,  that  he  not  only  knew 
him,  but  that  he  had  lodged  with  him,  and  that 
he  had  himself  gone  with  him  when  he  pur 
chased  his  horse  from  Gardner  last  fall,  for  the 
very  purpose  of  aiding  the  fight  of  himself,  or 
some  of  his  confederates. 

All  these  circumstances  taken  together,  which, 
as  we  have  seen  upon  high  authority,  are 
stronger  as  evidences  of  guilt  than  even  direct 
testimony,  leave  no  further  room  for  argument, 
and  no  rational  doubt  that  Dr.  Samuel  A.  Mudd 
was  as  certainly  in  this  conspiracy  as  were 
Booth  and  Herold,  whom  he  sheltered  and  en 
tertained  ;  receiving  them  under  cover  of  dark 
ness  on  the  morning  after  the  assassination, 
concealing  them  throughout  that  day  from  the 
hand  of  oifended  justice,  and  aiding  them,  by 
every  endeavor,  to  pursue  their  way  success 
fully  to  their  co-conspirator,  Arnold,  sit  For 
tress  Monroe,  and  in  which  direction  they  fled 
until  overtaken  and  Booth  was  slain. 

We  next  find  Herold  and  his  confederate 
Booth,  after  their  departure  from  the  house  of 
Mudd,  across  the  Potomac,  in  the  neighborhood 
of  Port  Conway,  on  Monday,  the  24th  of  April, 
conveyed  in  a  wagon.  There  Herold,  in  order 
to  obtain  the  aid  of  Captain  Jett,  Ruggles  and 
Bainbridge,  of  the  Confederate  army,  said  to 
Jett,  "We  are  the  assassinators  of  the  Presi 
dent;"  that  this  was  his  brother  with  him,  who, 
with  himself,  belonged  to  A.  P.  Hill's  corps; 
that  his  brother  had  been  wounded  at  Peters 
burg;  that  rtieir  names  were  Boyd.  He  re 
quested  Jett  and  his  rebel  companions  to  take 
them  out  of  the  lines.  After  this,  Booth  joined 
these  parties,  was  placed  on  Ruggles'  horse,  and 
crossed  the  llappahannock  river.  They  then 
proceeded  to  the  house  of  Garrett,  in  the  neigh 
borhood  of  Port  Royal,  and  nearly  midway  be 
tween  Washington  city  and  Fortress  Monroe, 
where  they  were  to  have  joined  Arnold.  Be 
fore  these  rebel  guides  and  guards  parted  with 
them,  Herold  confessed  that  they  were  travel 
ing  under  assumed  names — that  his  own  name 
was  Herold,  and  that  the  name  of  the  wounded 
man  was  John  Wilkes  Booth,  "who  had  killed 
the  Pi-esident."  The  rebels  left  Booth  at  Gar- 


ARGUMENT    OF   JOHN    A.    BINGHAM. 


401 


rett's,  where  Herold  re-visited  him  from  time  to 
time,  until  they  were  captured.  At  two  o'clock 
on  Wednesday  morning,  the  26th,  a  party  of 
United  States  officers  and  soldiers  sui'rounded 
Garrctt's  barn,  where  Booth  and  Herold  lay 
concealed,  and  demanded  their  surrender. 
Booth  cursed  Herold,  calling  him  a  coward, 
and  bade  him  go,  when  Herold  came  out  and 
surrendered  himself,  was  taken  into  custody, 
and  is  now  brought  into  Court.  The  barn  was 
then  sc!  on  fire,  when  Booth  sprang  to  his  feet, 
amid  the  flames  that  were  kindling  about  him, 
carbine  in  hand,  and  approached  the  door, 
seeking,  by  the  flashing  light  of  the  fire,  to  find 
some  new  victim  for  his  murderous  hand,  when 
he  was  shot,  as  he  deserved  to  be,  by  Sergeant 
Corbett,  in  order  to  save  his  comrades  from 
wounds  or  death  by  the  hands  of  this  desperate 
assassin.  Upon  his  person  was  found  the  fol 
lowing  bill  of  exchange : 

"No.  1492.  The  Ontario  Bank,  Montreal 
Branch.  Exchange  for  £61  12s.  lOrf.  Mon 
treal,  27th  October,  1864.  Sixty  days  after 
sight  of  this  first  of  exchange,  second  and  third 
of  the  same  tenor  and  date,  pay  to  the  order  of 
J.  Wilkes  Booth  £61  12s.  10eZ.  sterling,  value 
received,  and  charge  to  the  account  of  this 
office.  II.  Stanus,  manager.  To  Messrs.  Glynn, 
Mills  &  Co.,  London." 

Thus  fell,  by  the  hands  of  one  of  the  defend 
ers  of  the  republic,  this  hired  assassin,  who,  for 
a  price,  murdered  Abraham  Lincoln,  bearing 
upon  his  person,  as  this  bill  of  exchange  testi 
fies,  additional  evidence  of  the  fact  that  he  had 
undertaken,  in  aid  of  the  rebellion,  this  work 
of  assassination  by  the  hands  of  himself  and 
his  confederates,  for  such  sum  as  the  accred 
ited  agents  of  Jefferson  Davis  might  pay  him 
or  them,  out  of  the  funds  of  the  Confederacy, 
which,  as  is  in  evidence,  they  had  in  "  any 
amount"  in  Canada  for  the  purpose  of  reward 
ing  conspirators,  spies,  poisoners  and  assas 
sins,  who  might  take  service  under  their  false 
commissions,  and  do  the  work  of  the  incen 
diary  and  the  murderer  upon  the  lawful  repre 
sentatives  of  the  American  people,  to  whom  had 
been  intrusted  the  care  of  the  republic,  the 
maintenance  of  the  Constitution,  and  the  execu 
tion  of  the  laws. 

The  Court  will  remember  that  it  is  in  the  tes 
timony  of  Merritt,  and  Montgomery,  and  Con- 
over,  that  Thompson,  and  Sanders,  and  Clay, 
and  Cleary,  made  their  boasts  that  they  had 
money  in  Canada  for  this  very  purpose.  Nor 
is  it  to  be  overlooked  or  forgotten  that  the 
officers  of  the  Ontario  Bank,  at  Montreal,  testify 
that  during  the  current  year  of  this  conspiracy 
and  assassination,  Jacob  Thompson  had  on  de 
posit  in  that  bank  the  sum  of  six  hundred  and 
forty-nine  thousand  dollars,  and  that  these  de 
posits  to  the  credit  of  Jacob  Thompson  accrued 
from  the  negotiation  of  bills  of  exchange 
drawn  by  the  Secretary  of  the  Treasury  of  the 
so-called  Confederate  States  on  Frazier,  Tren- 
holm  &  Co.,  of  Liverpool,  who  were  known  to 
be  the  financial  agents  of  the  Confederate 
States.  With  an  undrawn  deposit  in  this  bank 
of  four  hundred  and  fifty-five  dollars,  which 
has  remained  to  his  credit  since  October  last, 
and  with  an  unpaid  bill  of  exchange  drawn  by 

26 


the  same  bank  upon  London,  in  his  possession, 
and  found  upon  his  person,  Booth  ends  his 
guilty  career  in  this  work  of  conspiracy  and 
blood  in  April,  1865,  as  he  began  it  in  October, 
1864,  in  combination  with  Jefferson  Davis, 
Jacob  Thompson,  George  N.  Sanders,  Clement 
C.  Clay,  William  C.  Cleary,  Beverley  Tucker, 
and  other  co-conspirators,  making  use  of  the 
money  of  the  rebel  confederation  to  aid  in  the 
execution  and  in  the  flight,  bearing,  at  the  mo 
ment  of  his  death,  upon  his  person,  their 
money,  part  of  the  price  which  they  paid  for 
his  great  crime,  to  aid  him  in  its  consummation, 
and  secure  him  afterward  from  arrest,  and  the 
just  penalty  which,  by  the  law  of  God  and  the 
law  of  man,  is  denounced  against  treasonable 
conspiracy  and  murder. 

By  all  the  testimony  in  the  case,  it  is,  in  my 
judgment,  made  as  clear  as  any  transaction 
can  be  shown  by  human  testimony,  that  John 
Wilkes  Booth  and  John  H.  Surratt,  and  the  sev 
eral  accused,  David  E.  Herold,  George  A.  Atze- 
rodt,  Lewis  Payne,  Michael  O'Laughlin,  Edward 
Spangler,  Samuel  Arnold,  Mary  E.  Surratt  and 
Samuel  A.  Mudd,  did,  with  intent  to  aid  the  ex 
isting  rebellion,  and  to  subvert  the  Constitution 
and  laws  of  the  United  States,  in  the  month  of 
October  last,  and  thereafter,  combine,  confed 
erate  and  conspire  with  Jefferson  Davis,  George 
N.  Sanders,  Beverley  Tucker,  Jacob  Thompson, 
William  C.  Cleary,  Clement  C.  Clay,  George 
Harper,  George  Young,  and  others  unknown, 
to  kill  and  murder,  within  the  military  depart 
ment  of  Washington,  and  within  the  intrenched 
fortifications  and  military  lines  thereof,  Abra 
ham  Lincoln,  then  President  of  the  United 
States,  and  Commander-in-Chief  of  the  army 
and  navy  thereof;  Andrew  Johnson,  Vice-Pres 
ident  of  the  United  States;  William  II.  Seward, 
Secretary  of  State,  and  Ulysses  S.  Grant,  Lieu- 
tenant-General,  in  command  of  the  armies  of 
the  United  States;  and  that  Jefferson  Davis, 
the  chief  of  this  rebellion,  was  the  instigator 
and  procurer,  through  his  accredited  agents  in 
Canada,  of  this  treasonable  conspiracy. 

It  is  also  submitted  to  the  Court,  that  it  is 
clearly  established  by  the  testimony  that  John 
Wilkes  Booth,  in  pursuance  of  this  conspiracy, 
so  entered  into  by  him  and  the  accused,  did,  on 
the  night  of  the  14th  of  April,  1865,  within  the 
military  department  of  Washington,  and  the 
intrenched  fortifications  and  military  lines 
thereof,  and  with  the  intent  laid,  inflict  a  mor 
tal  wound  upon  Abraham  Lincoln,  then  Presi 
dent  and  Commander-in-chief  of  the  army  and 
navy  of  the  United  States,  whereof  he  died; 
that,  in  pursuance  of  the  same  conspiracy,  and 
within  the  said  department  and  intrenched 
lines,  Lewis  Payne  assaulted^  with  intent  to 
kill  and  murder,  William  II.  Seward,  then  Sec 
retary  of  State  of  the  United  States;  that 
George  A.  Atz.erodt,  in  pursuance  of  the  same 
conspiracy,  and  within  the  said  department, 
[aid  in  wait,  with  intent  to  kill  and  murder 
Andrew  Johnson,  then  Vice-President  of  the 
United  States;  that  Michael  O'Laughlin,  within- 
said  department,  and  in  pursuance  of  said  con 
spiracy,  laid  in  wait  to  kill  and  murder  Ulysses 
S.  Grant,  then  in  command  of  the  armies  of 
the  United  States;  and  that  Mary  E.  Surratt, 


402 


THE    CONSPIRACY    TRIAL. 


David  E.  Herold,  Samuel  Arnold,  Samuel  A. 
Mudd  and  EdAyard  Spangler  did  encourage,  aid 
and  abet  the  commission  of  said  several  acts  in 
the  prosecution  of  said  conspiracy. 

If  this  treasonable  conspiracy  has  not  been 
wholly  executed;  if  the  several  executive  of 
ficers  of  the  United  States  and  the  commander 
of  its"  armies,  to  kill  and  murder  whom  the 
said  several  accused  thus  confederated  and  con 
spired,  have  not  each  and  all  fallen  by  the 
hands  of  these  conspirators,  thereby  leaving 
the  people  of  the  United  States  without  a  Pres 
ident  or  Vice-President,  without  a  Secretary 
of  State,  who  alone  is  clothed  Avith  authority 
by  the  law  to  call  an  election  to  fill  the  va 
cancy,  should  any  arise,  in  the  offices  of  Presi 
dent  and  Vice-President;  and,  without  a  law 
ful  commander  of  the  armies  of  the  republic, 
it  is  only  because  the  conspirators  were  de 
terred  by  the  vigilance  and  fidelity  of  the  ex 
ecutive  officers,  whose  lives  were  mercifully 
protected,  on  that  night  of  murder,  by  the  care 
of  the  Infinite  Being,  who  has,  thus  far,  saved 
the  Republic,  and  crowned  its  arms  with  vic 
tory. 

If  this  conspiracy  was  thus  entered  into  by 
the  accused;  if  John  Wilkes  Booth  did  kill  and 
murder  Abraham  Lincoln  in  pursuance  thereof ; 
if  Lewis  Payne  did,  in  pursuance  of  said  con 
spiracy,  assault,  with  intent  to  kill  and  murder, 
William  H.  Seward,  as  stated,  and  if  the  several 
parties  accused  did  commit  the  several  acts  al 
leged  against  them,  in  the  prosecution  of  said 
conspiracy,  then  it  is  the  law  that  all  the  par 
ties  to  that  conspiracy,  whether  present  at  the 
time  of  its  execution  or  not,  whether  on  trial 
before  this  Court  or  not,  are  alike  guilty  of  the 
several  acts  done  by  each  in  the  execution  of 
the  common  design.  What  these  conspirators 
did  in  the  execution  of  this  conspiracy  by  the 
hand  of  one  of  their  co-conspirators  they  did 
themselves;  his  act,  done  in  the  prosecution  of 
the  common  design,  was  the  act  of  all  the  par 
ties  to  the  treasonable  combination,  because 
done  in  execution  and  furtherance  of  their 
guilty  and  treasonable  agreement. 


As  we  have  seen  this  is  the  rule,  whether  all 
the  conspirators  arc  indicted  or  not ;  whether 
they  are  all  on  trial  or  not.  "It  is  not  mate 
rial  what  the  nature  of  the  indictment  is,  pro 
vided  the  oifense  involve  a  conspiracy.  Upon 
indictment  for  murder,  for  instance,  if  it  appear 
that  others,  together  with  the  prisoner,  con 
spired  to  perpetrate  the  crime,  the  act  of  one. 
done  in  pursuance  of  that  intention,  would  be 
evidence  against  the  rest."  1  Whar.,  700.  To 
the  same  effect  are  the  words  of  Chief  Justice 
Marshall,  before  cited,  that  whoever  leagued  in 
a  general  conspiracy,  performed  any  part,  how 
ever  MINUTE,  or  hoAvever  REMOTE,  from  the 
scene  of  action,  are  guilty  as  principals.  In 
this  treasonable  conspiracy,  to  aid  the  existing 
armed  rebellion,  by  murdering  the  executive 
officers  of  the  United  States  and  the  commander 
of  its  armies,  all  the  parties  to  it  must  be  held 
as  principals,  and  the  act  of  one,  in  the  prose 
cution  of  the  common  design,  the  act  of  all. 

I  leave  the  decision  of  this  dread  issue  with 
the  Court,  to  which  alone  it  belongs.  It  is  for 
you  to  say,  upon  your  oaths,  whether  the  ac 
cused  are  guilty. 

I  am  not  conscious  that  in  this  argument  I 
have  made  any  erroneous  statement  of  the  evi 
dence,  or  drawn  any  erroneous  conclusions; 
yet  I  pray  the  Court,  out  of  tender  regard  and 
jealous  care  for  the  rights  of  the  accused,  to 
see  that  no  error  of  mine,  if  any  there  be,  shall 
work  them  harm.  The  past  services  of  the  mem 
bers  of  this  honorable  Court  give  assurance 
that,  Avithout  fear,  favor  or  affection,  they  will 
discharge  with  fidelity  the  duty  enjoined  upon 
them  by  their  oaths.  Whatever  else  may  befall, 
I  trust  in  God  that  in  this,  as  in  every  other 
American  court,  the  rights  of  the  whole  people 
will  be  respected,  and  that  the  Republic  in  this, 
its  supreme  hour  of  trial,  will  be  true  to  itself 
and  just  to  all,  ready  to  protect  the  rights  of 
the  humblest,  to  redress  every  Avrong,  to  avenge 
every  crime,  to  vindicate  the  majesty  of  law, 
and  to  maintain  imnolate  the  Constitution, 
whether  assailed  secretly  or  openly,  by  hosts 
armed  with  gold,  or  armed  with  steel. 


ON    THE 


CONSTITUTIONAL  POWER  OF  THE  MILITARY 

TO    TRY   AND    EXECUTE   THE 

ASSASSINS  OF  THE  PRESIDENT. 

BY   ATTOBNEY    GENEBAL    JAMES  SPEED. 


ATTORNEY  GENERAL'S  OFFICE, 

Washington,  July  — ,  1865. 

SIR:  You  ask  me  whether  the  persons  charged 
with  the  offense  of  having  assassinated  the 
President  can  be  tried  before  a  military  tribu 
nal,  or  must  they  be  tried  before  a  civil  court. 

The  President  was  assassinated  at  a  theater 
in  the  city  of  Washington.  At  the  time  of  the 
assassination  a  civil  war  was  flagrant,  the  city 
of  Washington  was  defended  by  fortifications 
regularly  and  constantly  manned,  the  principal 
police  of  the  city  was  by  Federal  soldiers,  the 
public  offices  and  property  in  the  city  were  all 
guarded  by  soldiers,  and  the  President's  House 
and  person  were,  or  should  have  been,  under  the 
guard  of  soldiers.  Martial  law  had  been  de 
clared  in  the  District  of  Columbia,  but  the  civil 
courts  were  open  and  held  their  regular  sess 
ions,  and  transacted  business  as  in  times  of 
peace. 

Such  being  the  facts,  the  question  is  one  of 
great  importance — important,  because  it  in 
volves  the  constitutional  guarantees  thrown 
about  the  rights  of  the  citizen,  and  because  the 
security  of  the  army  and  the  government  in 
time  of  war  is  involved  ;  important,  as  it  in 
volves  a  seeming  conflict  between  the  laws  of 
peace  and  of  war. 

Having  given  the  question  propounded  the 
patient  and  earnest  consideration  its  magni 
tude  and  importance  require,  I  will  proceed  to 
give  the  reasons  why  I  am  of  the  opinion  that 
the  conspirators  not.  only  may  but  ought  to  be 
tried  by  a  military  tribunal. 

A  civil  court  of  the  United  States  is  created 
by  a  law  of  congress,  under  and  according  to 
the  Constitution.  To  the  Constitution  and  the 
law  we  must  look  to  ascertain  how  the  court  is 
constituted,  the  limits  of  its  jurisdiction,  and 
what  its  mode  of  procedure. 

A  military  tribunal  exists  under  and  accord 
ing  to  the  Constitution  in  time  of  war.  Con 
gress  may  prescribe  how  all  such  tribunals  are 
to  be  constituted,  what  shall  be  their  jurisdic 
tion  and  mode  of  procedure.  Should  Congress 
fail  to  create  such  tribunals,  then,  under  the 


Constitution,  they  must  be  constituted  accord 
ing  to  the  laws  and  usages  of  civilized  war 
fare.  They  may  take  cognizance  of  such  of 
fenses  as  the  laws  of  war  permit;  they  must 
proceed  according  to  the  customary  usages  of 
such  tribunals  in  time  of  war,  and  inflict  such 
punishments  as  are  sanctioned  by  the  practice 
of  civilized  nations  in  time  of  war.  In  time 
of  peace,  neither  Congress  nor  the  military  can 
create  any  military  tribunals,  except  such  as 
are  made  in  pursuance  of  that  clause  of  the 
Constitution  which  gives  to  Congress  the  power 
"to  make  rules  for  the  government  of  the  land 
and  naval  forces."  I  do  not  think  that  Con 
gress  can,  in  time  of  war  or  peace,  under  this 
clause  of  the  Constitution,  create  military  tri 
bunals  for  the  adjudication  of  offenses  com 
mitted  by  persons  not  engaged  in,  or  belonging 
to,  such  forces.  This  is  a  proposition  too  plain 
for  argument.  But  it  does  not  follow  that  be 
cause  such  military  tribunals  can  not  be  cre 
ated  by  Congress  under  this  clause,  that  they 
can  not  be  created  at  all.  Is  there  no  other 
power  conferred  by  the  Constitution  upon  Con 
gress  or  the  militai-y,  under  which  such  tribu 
nals  may  be  created  in  time  of  war? 

That  the  law  of  nations  constitutes  a  part  of 
the  laws  of  the  land,  must  be  admitted.  The 
laws  of  nations  are  expressly  made  laws  of  the 
land  by  the  Constitution,  when  it  says  that 
"  Congress  shall  have  power  to  define  and  pun 
ish  piracies  and  felonies  committed  on  the  high 
seas  and  offenses  against  the  laws  of  nations." 
To  define  is  to  give  the  limits  or  precise  meaning 
of  a  word  or  thing  in  being;  to  make,  is  to  call 
into  being.  Congress  has  power  to  define,  not 
to  make,  the  laws  of  nations ;  but  Congress  has 
the  power  to  make  rules  for  the  government  of 
the  army  and  navy.  From  the  very  face  of  the 
Constitution,  then,  it  is  evident  that  the  laws 
of  nations  do  constitute  a  part  of  the  laws  of 
the  land.  But  very  soon  after  the  organization 
of  the  Federal  Government,  Mr.  Randolph,  then 
Attorney  General,  said:  "The  law  of  nations, 
although  not  specifically  adopted  by  the  Con 
stitution,  is  essentially  a  part  of  the  law  of  the 
land.  Its  obligation  commences  and  runs  with 

403 


404 


APPENDIX. 


the  existence  of  a  nation,  subject  to  modification  nary  process  of  law,  the  military  should  not  be 
on  some  points  of  indifference/'  (See  opinion  ;  called  out.  A  defensive  foreign  war  is  declared 
Attorney  General,  vol.  1,  page27.)  The  framers  and  carried  on  because  the  civil  police  is  inade- 
of  the  Constitution  knew  that  a  nation  could  quate  to  repel  it ;  a  civil  war  is  waged  because 
not  maintain  an  honorable  place  among  the  the  laws  can  not  be  peacefully  enforced  by  the 
nations  of  the  world  that  does  not  regard  the  j  ordinary  tribunals  of  the  country  through  civil 
great  and  essential  principles  of  the  law  of  na- I  process  and  by  civil  officers.  Because°of  the 
tions  as  a  part  of  the  law  of  the  land.  Hence'  utter  inability  to  keep  the  peace  and  maintain 
Congress  may  define  those  laws,  but  can  not  j  order  by  the  customary  officers  and  agencies  in 
abrogate  them,  or  as  Mr.  Randolph  says,  may  time  of  peace,  armies  are  organized  and  put  into 
"  modify  on  some  points  of  indifference.''  j  the  field.  They  are  called  out  and  invested  with 


That  the  laws  of  nations  constitute  a  part  of 
the  laws  of  the  land  is  established  from  the  face 
of  the  Constitution,  upon  principle  and  by  au 
thority. 


But 


the  powers  of  war  to  prevent  total  anarchy  and 
to  preserve  the  Government.  Peace  is  the  nor 
mal  condition  of  a  country,  and  war  abnormal, 
neither  being  without  law,  but  each  having  laws 


the    laws    of   war  constitute    much    the   appropriate    to   the    condition  of  society.     The 


greater  part  of  the  law  of  nations.  Like  the  other 
laws  of  nations,  they  exist  and  are  of  binding 
force  upon  the  departments  and  citizens  of  the 
Government,  though  not  defined  by  any  law  of 
Congress.  No  one  that  has  ever  glanced  at  the 
many  treatises  that  have  been  published  indif 
ferent  ages  of  the  world  by  great,  good  and 
learned  men,  can  fail  to  know  that  the  laws  of 
war  constitute  a  part  of  the  law  of  nations, 
and  that  those  laws  have  been  prescribed  with 


tolerable  accuracy. 

Congress  can  declare  war. 


When  war  is  de 


clared,  it  must  be,  under  the  Constitution,  car 
ried  on  according  to  the  known  laws  and  usages 
of  war  among  civilized  nations.  Under  the 
power  to  define  those  laws,  Congress  can  not 
abrogate  them  or  authorize  their  infraction. 
The  Constitution  does  not  permit  this  Govern 
ment  to  prosecute  a  war  as  an  uncivilized  and 
barbarous  people. 

As  war  is  required  by  the  frame-work  of  our 
Government  to  be  prosecuted  according  to  the 
known  usages  of  war  among  the  civilized  na 
tions  of  the  earth,  it  is  important  to  understand 
what  are  the  obligations,  duties  and  responsi 
bilities  imposed  by  war  upon  the  military.  Con 
gress,  not  having  defined,  asunder  the  Consti 
tution  it  might  have  done,  the  laws  of  war,  we 
must  look  to  the  usage  of  nations  to  ascertain 
the  powers  conferred  in  war,  on  whom  the  ex 
ercise  of  such  powers  devolve,  over  whom,  and 
to  what  extent  do  those  powers  reach,  and  in 
how  far  the  citizen  and  the  soldier  are  bound 
by  the  legitimate  use  thereof. 

The  power  conferred  by  war  is,  of  course, 
adequate  to  the  end  to  be  accomplished,  and  not 
greater  than  what  is  necessary  to  be  accom- 


maxim  enter  arma  silent  leges  is  never  wholly  true. 
The  object  of  war  is  to  bring  society  out  of  its 
abnormal  condition  ;  and  the  laws  of  war  aim 
to  have  that  done  with  the  least  possible  injury 
to  persons  or  property. 

Anciently,  when  two  nations  were  at  war,  the 
conqueror  had,  or  asserted,  the  right  .to  take 
from  his  enemy  his  life,  liberty  and  property  : 
if  either  was  spared,  it  was  as  a  favor  or  act  of 
mercy.  By  the  laws  of  nations,  and  of  war  as 
a  part  thereof,  the  conqueror  was  deprived  of 
this  right. 

When  two  governments,  foreign  to  each  other, 
are  at  war,  or  when  a  civil  war  becomes  terri 
torial,  all  of  the  people  of  the  respective  bel 
ligerents  become  by  the  law  of  nations  the  ene 
mies  of  each  other.  As  enemies  they  can  not 
hold  intercourse,  but  neither  can  kill  or  injure 
the  other  except  under  a  commission  from  their 
respective  governments.  So  humanizing  have 
been,  and  are  the  laws  of  Avar,  that  it  is  a  high 
offense  against  them  to  kill  an  enemy  without 
such  commission.  The  laws  of  war  demand 
that  a  man  shall  not  take  human  life  except 
under  a  license  from  his  government ;  and  under 
the  Constitution  of  the  United  States  no  license 
can  be  given  by  any  department  of  the  Govern 
ment  to  take  human  life  in  war,  except  accord 
ing  to  the  law  and  usages  of  war.  Soldiers 
regularly  in  the  service  have  the  license  of  the 
government  to  deprive  men,  the  active  enemies 
of  their  government,  of  their  liberty  and  lives; 
their  commission  so  to  act  is  as  perfect  and 
legal  as  that  of  a  judge  to  adjudicate,  but  the 
soldier  must  act  in  obedience  to  the  laws  of  war, 
as  the  judge  must  in  obedience  to  the  civil  law. 
A  civil  judge  must  try  criminals  in  the  mode 


plished.  The  law  of  war,  like  every  other  code  prescribed  in  the  Constitution  and  the  law;  so, 
of  laws,  declares  what  shall  not  be  done,  and  j  soldiers  must  kill  or  capture  according  to  the 
does  not  say  what  may  be  done.  The  legitimate  j  laws  of  war.  Non-combatants  are  not  to  be  dis 
use  of  the  great  power  of  war,  or  rather  the  pro-  I  turbed  or  interfered  with  by  the  armies  of  either 
hibitions  upon  the  use  of  that  power,  increase  i  party  except  in  extreme  cases.  Armies  are 
or  diminish  as  the  necessity  of  the  case  demands,  called  out  arid  organized  to  meet  and  overcome 


When  a  city  is  besieged  and  hard  pressed,  the 
commander  may   exert   an  authority  over  the 


the  active,  acting  public  enemies. 

But  enemies  with  which  an  army  has  to  deal 


non-combatants   which   he   may   not   when   no  j  are  of  two  classes  : 
enemy  is  near.  1.  Open,  active  participants  in  hostilities,  as 

All  wars  against  a  domestic  enemy  or  to  re-  soldiers  who  wear  the  uniform,  move  under  the 
pel  invasions,  are  prosecuted  to  preserve  the  flag,  and  hold  the  appropriate  commission  from 
Government.  If  the  invading  force  can  be  over-  their  government.  Openly  assuming  to  dis- 
come  by  the  ordinary  civil  police  of  a  country,  it  charge  the  duties  and  meet  the  responsibilities 
should  be  done  without  bringing  upon  thecoun-j  and  dangers  of  soldiers,  they  are  entitled  to  all 
try  the  terrible  scourge  of  war;  if  a  commotion '  belligerent  rights,  and  should  receive  all  the 
or  insurrection  can  be  put  down  by  the  ordi-i  courtesies  due  to  soldiers.  The  true  soldier  is 


APPENDIX. 


405 


proud  to  acknowledge  and  respect  those  rights, 
and  ever  cheerfully  extends  those  courtesies. 

2.  Secret,  but  active  participants,  as  spies, 
brigands,  bushwhackers,  jay  hawkers,  war  rebels 
and  assassins.  In  all  wars,  and  especially  in 
civil  wars,  such  secret,  active  enemies  rise  up 
to  annoy  and  attack  an  army,  and  must  be  met 
and  put  down  by  the  army.  When  lawless 
wretches  become  so  impudent  and  powerful  as 
not  to  be  controlled  and  governed  by  the  ordinary 
tribunals  of  a  country,  armies  are  called  out,  and 
the  laws  of  war  invoked.  Wars  never  have  been 
and  never  can  be  conducted  upon  the  principle 
that  an  army  is  but  a  posse  comitatus  of  a  civil 
magistrate. 

An  army,  like  all  other  organized  bodies,  has 
a  right,  and  it  is  its  first  duty,  to  protect  its  own 
existence  and  the  existence  of  all  its  parts,  by 
the  means  and  in  the  mode  usual  among  civil 
ized  nations  when  at  war.  Then  the  question 
arises,  do  the  laws  of  war  authorize  a  different 
mode  of  proceeding,  and  the  use  of  different 
means  against  secret  active  enemies  from  those 
used  against  open  active  enemies  ? 

As  has  been  said,  the  open  enemy  or  soldier  in 
time  of  war  may  be  met  in  battle  and  killed, 
wounded  or  taken  prisoner,  or  so  placed  by  the 
lawful  strategy  of  war  as  that  he  is  powerless. 
Unless  the  law  of  self-preservation  absolutely  de 
mands  it,  the  life  of  a  wounded  enemy  or  a  pris 
oner  must  be  spared.  Unless  pressed  thereto  by 
the  extremest  necessity, the  laws  of  war  condemn 
and  punish  with  great  severity  harsh  or  cruel 
treatment  to  a  wounded  enemy  or  a  prisoner. 

Certain  stipulations  and  agreements,  tacit  or 
express,  betwixt  the  open  belligerent,  parties, 
are  permitted  by  the  laws  of  war,  and  are  held 
to  be  of  very  high  and  sacred  character.  Such 
is  the  tacit  understanding,  or  it  may  be  usage, 
of  war,  in  regard  to  flags  of  truce.  Flags  of 
truce  are  resorted  to  as  a  means  of  saving  hu 
man  life,  or  alleviating  human  suffering.  When 
not  used  with  perfidy,  the  laws  of  war  require 
that  they  should  be  respected.  The  Romans 
regarded  ambassadors  betwixt  belligerents  as 
persons  to  be  treated  with  consideration  and 
respect.  Plutarch,  in  his  Life  of  Ccesar,  tells  us 
that  the  barbarians  in  Gaul  having  sent  some 
ambassadors  to  Caesar,  he  detained  them,  charg 
ing  fraudulent  practices,  and  led  his  army  to 
battle,  obtaining  a  great  victory. 

When  the  Senate  decreed  festivals  and  sacri 
fices  for  the  victory,  Cato  declared  it  to  be  his 
opinion  that  Caesar  ought  to  be  given  into  the 
hands  of  the  barbarians,  that  so  the  guilt  which 
this  breach  of  faith  might  otherwise  bring  upon 
the  State  might  be  expiated  by  transferring  the 
curse  on  him  who  was  the  occasion  of  it. 

Under  the  Constitution  and  laws  of  the  United 
States,  should  a  commander  be  guilty  of  such  a 
flagrant  breach  of  law  as  Cato  charged  upon 
Crcsar,  he  would  not  be  delivered  to  the  enemy, 
but  would  be  punished  after  a  military  trial. 
The  many  honorable  gentlemen  who  hold  com 
missions  in  the  army  of  the  United  States,  and 
have  been  deputed  to  conduct  war  according  to 
the  laws  of  war,  would  keenly  feel  it  as  an  in 
sult  to  their  profession  of  arms  for  any  one  to 
say  that  they  could  not  or  would  not  punish  a 
fellow-soldier  who  was  guilty  of  wanton  cruelty 


to  a  prisoner,  or  perfidy  toward  the  bearers  of  a 
flag  .of  truce. 

The  laws  of  war  permit  capitulations  of  sur 
render  and  paroles.  They  are  agreements  be 
twixt  belligerents,  and  should  be  scrupulously 
observed  and  performed.  They  are  contracts 
wholly  unknown  to  civil  tribunals.  Parties 
I  to  such  contracts  must  answer  any  breaches 
j  thereof  to  the  customary  military  tribu- 
nals  in  time  of  war.  If  an  officer  of  rank, 
possessing  the  pride  that  becomes  a  soldier  and 
a  gentleman,  who  should  capitulate  to  surren 
der  the  forces  and  property  under  his  command 
and  control,  be  charged  with  a  fraudulent 
breach  of  the  terms  of  surrender,  the  laws  of 
war  do  not  permit  that  he  should  be  punished 
without  a  trial,  or,  if  innocent,  that  he  shall 
have  no  means  of  wiping  out  the  foul  imputa 
tion.  If  a  paroled  prisoner  is  charged  with  a 
breach  of  his  parole,  he  may  be  punished  if 
guilty,  but  not  without  a  trial.  He  should  be 
tried  by  a  military  tribunal,  constituted  and 
proceeding  as  the  laws  and  usages  of  war  pre 
scribe. 

The  law  and  usage  of  war  contemplate  that 
soldiers  have  a  high  sense  of  personal  honor. 
The  true  soldier  is  proud  to  feel  and  know  that 
his  enemy  possesses  personal  honor,  and  will 
conform  and  be  obedient  to  the  laws  of  war. 
In  a  spirit  of  justice,  and  with  a  wise  appreci 
ation  of  such  feelings,  the  laws  of  war  protect 
the  character  and  honor  of  an  open  enemy. 
When  by  the  fortunes  of  war  one  open  enemy 
is  thrown  into  the  hands  and  power  of  another, 
and  is  charged  with  dishonorable  conduct  and  a 
breach  of  the  laws  of  war,  he  must  be  tried  ac 
cording  to  the  usages  of  war.  Justice  and 
fairness  say  that  an  open  enemy  to  whom  dis 
honorable  conduct  is  imputed,  has  a  right  to 
demand  a  trial.  If  such  a  demand  can  be  right 
fully  made,  surely  it  can  not  be  rightfully  re 
fused.  It  is  to  be  hoped  that  the  military  au 
thorities  of  this  country  will  never  refuse  such 
a  demand,  because  there  is  no  act  of  Congress 
that  authorizes  it.  In  time  of  war  the  law  .and 
usage  of  war  authorize  it,  and  they  are  a  part 
of  the  law  of  the  land. 

One  belligerent  may  request  the  other  to  pun 
ish  for  breaches  of  the  laws  of  war,  and,  regu 
larly,  such  a  request  should  be  made  before 
retaliatory  measures  are  taken.  Whether  the 
laws  of  war  have  been  infringed  or  not,  is  of 
necessity  a  question  to  be  decided  by  the  laws 
and  usages  of  war,  and  is  cognizable  before  a 
military  tribunal.  Wrhen  prisoners  of  war  con 
spire  to  escape,  or  are  guilty  of  a  breach  of 
appi-opriate  and  necessary  rules  of  prison  dis 
cipline,  they  may  be  punished,  but  not  without 
trial.  The  commander  who  should  order  every 
prisoner  charged  with  improper  conduct  to  be 
shot  or  hung,  would  be  guilty  of  a  high  offense 
against  the  laws  of  war,  and  should  be  punished 
therefor,  after  a  regular  military  trial.  If  the 
culprit  should  be  condemned  and  executed,  the 
commander  would  be  as  free  from  guilt  as  if  the 
man  had  been  killed  in  battle. 

It  is  manifest,  from  what  has  been  said,  that 
military  tribunals  exist  under  and  according  to 
the  laws  and  usages  of  war,  in  the  in  tercst  of  jus 
tice  and  mercy.  They  are  established  to  save  hu- 


406 


APPENDIX. 


man  life,and  to  prevent  cruelty  as  far  as  possible.  I  nations,  can  doubt  but  that  Mr.Wheaton  and  Mr. 


The  commander  of  an  army  in  time  of  war  has 
the  same  power  to  organize  military  tribunals 
and  execute  their  judgments  that  he  has  to  get 
his  squadrons  in  the  field  and  fight  battles. 
His  authority  in  each  case  is  from  the  law  and 
usage  of  war. 

Having  seen  that  there  must  be  military  tri 
bunals  to  decide  questions  arising  in  time  of 
war  betwixt  belligerents  who  are  open  and 
active  enemies,  let  us  next  see  whether  the  laws 
of  war  do  not  authorize  such  tribunals  to  deter 
mine  the  fate  of  those  who  are  active,  but  secret, 
participants  in  the  hostilities. 

In  Mr.  Wheaton's  Elements  of  International 
Law,  he  says  :  "The  effect  of  a  state  of  war,  law 
fully  declared  to  exist,  is  to  place  all  the  sub 
jects  of  each  belligerent  power  in  a  state  of  mu 
tual  hostility.  The  usage  of  nations  has  modified 
this  maxim  by  legalizing  such  acts  of  hostility 
only  as  are  committed  by  those  who  are  author 
ized  by  the  express  or  implied  command  of  the 
State;  such  are  the  regularly  commissioned 
naval  and  military  forces  of  the  nation  and  all 
others  called  out  in  its  defense,  or  spontane 
ously  defending  themselves,  in  case  of  necessity, 
without  any  express  authority  for  that  purpose. 
Cicero  tells  us  in  his  offices,  that  by  the  Roman 
feudal  law  no  person  could  lawfully  engage  in 
battle  with  the  public  enemy  without  being 
regularly  enrolled,  and  taking  the  military  oath. 
This  was  a  regulation  sanctioned  both  by  policy 
and  religion.  The  horrors  of  war  would  indeed 
be  greatly  aggravated,  if  every  individual  of 
the  belligerent  States  were  allowed  to  plunder 
and  slay  indiscriminately  the  enemy's  subjects, 
without  being  in  any  manner  accountable  for 
his  conduct.  Hence  it  is  that,  in  land  wars,  ir 
regular  bands  of  marauders  are  liable  to  be  treated 
as  landless  banditti,  not  entitled  to  the  protection  of 
the  mitigated  usages  of  war  as  practiced  by  civilized 
nations. "  (  Wheaton  s  Elements  of  International 
Law,  page  406,  3d  edition.) 

In  speaking  upon  the  subject  of  banditti, 
Patrick  Henry  said,  in  the  Virginia  Convention, 
" The  honorable  gentleman  has  given  you  an 
elaborate  account  of  what  he  judges  tyrannical 
legislation,  and  an  ex  post  facto  law  (in  the  case 
of  Josiah  Phillips);  he  has  misrepresented  the 
facts.  That  man  was  not  executed  by  a  tyran 


nical  stroke  of  power;  nor  was  he  a  Socrates; 
he  wras  a  fugitive  murderer  and   an  outlaw ;  a 


Henry  have  fairly  stated  the  laws  of  war.  Let 
it  be  constantly  borne  in  mind  that  they  are 
talking  of  the  law  in  a  state  of  war.  These  ban 
ditti  that  spring  up  in  time  of  war  are  respect 
ers  of  no  law,  human  or  divine,  of  peace  or  of 
war,  are  hostes  humani  generis,  and  maybe  hunted 
down  like  wolves.  Thoroughly  d-esperate  and 
perfectly  lawless,  no  man  can  be  required  to 
peril  his  life  in  venturing  to  take  them  prison 
ers — as  prisoners,  no  trust  can  be  reposed  in 
them.  But  they  are  occasionally  made  prison 
ers.  Being  prisoners,  what  is  to  be  done  with 
them?  If  they  are  public  enemies,  assuming 
and  exercising  the  right  to  kill,  and  are  not 
regularly  authorized  to  do  so?.  they  must  be  ap 
prehended  and  dealt  with  by  the  military.  No 
man  can  doubt  the  right  and  duty  of  the  mili 
tary  to  make  prisoners  of  them,  and  being 
public  enemies,  it  is  the  duty  of  the  military  to 
punish  them  for  any  infraction  of  the  laws  of 
war.  But  the  military  can  not  ascertain 
whether  they  are  guilty  or  not  without  the  aid 
of  a  military  tribunal. 

In  all  wars,  and  especially  in  civil  wars, 
secret  but  active  enemies  are  almost  as  numer 
ous  as  open  ones.  That  fact  has  contributed  to 
make  civil  wars  such  scourges  to  the  countries 
in  which  they  rage.  In  nearly  all  foreign  wars 
the  contending  parties  speak  different  languages 
and  have  different  habits  and  manners;  but  in 
most  civil  wars  that  is  not  the  case;  hence 
there  is  a  security  in  participating  secretly  in 
hostilities  that  induces  many  to  thus  engage. 
War  prosecuted  according  to  the  most  civilized 
usage  is  horrible,  but  its  horrors  are  greatly 
aggravated  by  the  immemorial  habits  of  plun 
der,  rape  and  murder  practiced  by  secret,  but 
active  participants.  Certain  laws  and  usages 
have  been  adopted  by  the  civilized  world  in  wars 
between  nations  that  are  not  of  kin  to  one  an 
other,  for  the  purpose  and  to  the  effect  of  arrest 
ing  or  softening  many  of  the  necessary  cruel 
consequences  of  war.  How  strongly  bound  are 
we,  then,  in  the  midst  of  a  great  war,  where 
brother  and  personal  friend  are  fighting  agains-t 
brother  and  friend,  to  adopt  and  be  governed  by 
those  laws  and  usages. 

A  public  enemy  must  or  should  be  dealt  with 
in  all  wars  by  the  same  laws.  The  fact  that 


they  are   public   enemies,  being  the  same,  they 
should  deal  with  each  other  according  to  those 

man  who  commanded  an  infamous  banditti,  and  I  laws  of  war  that  are  contemplated  by  the  Con- 
at  a  time  ivhen  the  war  was  at  the  most  perilous  stage  \  stitution.  Whatever  rules  have  been  adopted 
he  committed  the  most  cruel  and  shocking  bar-  and  practiced  by  the  civilized  nations  of  the 
barities  ;  he  was  an  enemy  to  the  human  name,  world  in  war,  to  soften  its  harshness  and 
Those  who  declare  war  against  the  human  race  severity,  should  be  adopted  and  practiced  by  us 
may  be  struck  out  of  existence  as  soon  as  ap-|in  this  war.  That  the  laws  of  war  authorized 


prchended.  He  was  not  executed  according  to 
those  beautiful  legal  ceremonies  which  are 
pointed  out  by  the  laws  in  criminal  cases.  The 
enormity  of  his  crime  did  not  entitle  him  to  it. 
I  am  truly  a  friend  to  legal  forms  and  methods, 
but,  sir,  the  occasion  warranted  the  measure. 
A  pirate,  an  outlaw,  or  a  common  enemy  to  all 
mankind,  may  be  put  to  death  at  any  time.  It 
is  justified  by  the  law  of  nature  and  nations.1'  (3d 
volume  Elliott's  Debates  on  Federal  Constitution, 
page  140.) 

No  reader,  not  to  say  student,  of  the  law  of 


commanders  to  create  and  establish  military 
commissions,  courts  or  tribunals,  for  the  trial 
of  offenders  against  the  laws  of  Avar,  whether 
they  be  active  or  secret  participants  in 
the  hostilities,  can  not  be  denied.  That  the 
judgments  of  such  tribunals  may  have  been 
some  times  harsh,  and  sometimes  even  tyranni 
cal,  docs  not  prove  that  they  ought  not  to  exist, 
nor  does  it  prove  that  they  are  not  constituted 
in  the  interest  of  justice  and  mercy.  Consider 
ing  the  power  that  the  laws  of  war  give  over 
secret  participants  in  hostilities,  such  as  ban- 


APPENDIX. 


407 


ditti,  guerrillas,  spies,  etc.,  the  position  of  a 
commander  would  be  miserable  indeed  if  he 
could  not  call  to  his  aid  the  judgments  of  such 
tribunals  ;  he  would  become  a  mere  butcher  of 
men,  without  the  power  to  ascertain  justice,  and 
there  can  be  no  mercy  where  there  is  no  justice. 
War  in  its  mildest  form  is  horrible;  but  take 
away  from  the  contending  armies  the  ability 
and  right  to  organize  what  is  now  known  as  a 
Bureau  of  Military  Justice,  they  would  soon 
become  monster  savages,  unrestrained  by  any 
and  all  ideas  of  law  and  justice.  Surely  no 
lover  of  mankind,  no  one  that  respects  law  and 
order,  no  one  that  has  the  instinct  of  justice,  or 
that  can  be  softened  by  mercy,  would,  in  time 
of  war,  take  away  from  the  commanders  the 
right  to  organize  military  tribunals  of  justice, 
and  especially  such  tribunals  for  the  protection 
of  persons  charged  or  suspected  with  being 
secret  foes  and  participants  in  the  hostilities. 
It  would  be  a  miracle  if  the  records  and  history 
of  this  war  do  not  show  occasional  cases  in 
which  those  tribunals  have  erred ;  but  they  will 
show  many,  very  many  cases  in  which  human 
life  would  have  been  taken  but  for  the  interpo 
sition  and  judgments  of  those  tribunals.  Every 
student  of  the  laws  of  war  must  acknowledge 
that  su<ih  tribunals  exert  a  kindly  and  benign 
influence  in  time  of  war.  Impartial  history 
will  record  the  fact  that  the  Bureau  of  Military 
Justice,  regularly  organized  during  this  war,  has 
saved  human  life  and  prevented  human  suffer 
ing.  The  greatest  suffering,  patiently  endured 
by  soldiers,  and  the  hardest  battles  gallantly 
fought  during  this  protracted  struggle,  are  not 
more  creditable  to  the  American  character  than 
the  establishment  of  this  bureau.  This  people 
have  such  an  educated  and  profound  respect  for 
law  and  justice — such  a  love  of  mercy — that 
they  have,  in  the  midst  of  this  greatest  of  civil 
wars,  systematized  and  brought  into  regular 
order,  tribunals  that  before  this  war  existed 
under  the  law  of  war,  but  without  general  rule. 
To  condemn  the  tribunals  that  have  been  estab 
lished  under  this  bureau,  is  to  condemn  and 
denounce  the  war  itself,  or  justifying  the  war, 
to  insist  that  it  shall  be  prosecuted  according  to 
the  harshest  rules,  and  without  the  aid  of  the 
laws,  usages  and  customary  agencies  for  miti 
gating  those  rules.  If  such  tribunals  had  not 
existed  before,  under  the  laws  and  usages  of 
war,  the  American  citizen  might  as  proudly 
point  to  their  establishment  as  to  our  inimitable 
and  inestimable  constitutions.  It  must  be  con 
stantly  borne  in  mind  that  such  tribunals  and 
such  a  bureau  can  not  exist  except  in  time  of 
war,  and  can  riot  then  take  cognizance  of  offen 
ders  or  offenses  where  the  civil  courts  are  open, 
except  offenders  and  offenses  against  the  laws 
of  war. 

But  it  is  insisted  by  some,  and  doubtless  with 
honesty,  and  with  a  zeal  commensurate  with 
their  honesty,  that  such  military  tribunals  can 
have  no  constitutional  existence.  The  argu 
ment  against  their  constitutionality  may  be 
shortly,  and  I  think  fairly,  stated  thus  : 

Congress  alone  can  establish  military  or  civil 
judicial  tribunals.  As  Congress  has  not  estab 
lished  military  tribunals,  except  such  as  have 
been  created  under  the  articles  of  war,  and 


which  articles  are  made  in  pursuance  of  that 
clause  in  the  Constitution  which  gives  to  Con 
gress  the  power  to  make  rules  for  the  govern 
ment  of  the  army  and  navy,  any  other  tribunal 
is  and  must  be  plainly  unconstitutional,  and  all 
its  acts  void. 

This  objection  thus  stated,  or  stated  in  any 
other  way,  begs  the  question.  It  assumes  that 
Congress  alone  can  establish  military  judicial 
tribunals.  Is  that  assumption  true  ? 

We  have  seen  that  when  war  comes,  the  laws 
and  usages  of  war  come  also,  and  that  during 
the  war  they  are  a  part  of  the  laws  of  the  land. 
Under  the  Constitution,  Congress  may  define 
and  punish  offenses  against  those  laws,  but  in 
default  of  Congress  defining  those  laws  and  pre 
scribing  a  punishment  for  their  infraction,  and 
the  mode  of  proceeding  to  ascertain  whether  an 
offense  has  -been  committed,  and  what  punish 
ment  is  to  be  inflicted,  the  army  must  be  gov 
erned  by  the  laws  and  usages  of  war  as  under- 
derstood  and  practiced  by  the  civilized  nations 
of  the  world.  It  has  been  abundantly  shown 
that  these  tribunals  are  constituted  by  the  army 
in  the  interest  of  justice  and  mercy,  and  for  the 
purpose  and  to  the  effect  of  mitigating  the  hor 
rors  of  war. 

But  it  may  be  insisted  that  though  the  laws 
of  war,  being  a  part  of  the  law  of  nations,  con 
stitute  a  part  of  the  laws  of  the  land,  that  those 
laws  must  be  regarded  as  modified  so  far,  and 
whenever  they  come  in  direct  conflict  with  plain 
constitutional  provisions.  The  following  clauses 
of  the  Constitution  are  principally  relied  upon 
to  show  the  conflict  betwixt  the  laws  of  war  and 
the  Constitution  : 

"The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  the  jury;  and  such 
trial  shall  be  held  in  the  State  where  the  said 
crime  shall  have  been  committed;  but  when  not 
committed  within  any  State,  the  trial  shall  be 
at  such  place  or  places  as  the  Congress  may  by 
law  have  directed."  (Art.  Ill  of  the.  original 
Constitution,  sec.  2.) 

"  No  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime  unless  on 
a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  laud  or  naval 
forces,  or  in  the  militia  when  in  actual  service, 
in  time  of  war  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb,  nor  shall  be  com 
pelled,  in  any  criminal  case,  to  be  witness 
against  himself,  nor  be  deprived  of  life,  liberty 
or  property,  without  due  process  of  law;  nor 
shall  private  property  be  taken  for  public  use 
without  just  compensation."  (Amendments  to 
the  Constitution,  Art.  V.) 

"  In  all  criminal  prosecutions,  the  accused 
shall  enjoy  the  right  of  a  speedy  and  public 
trial  by  an  impartial  jury  of  the  State  and  dis 
trict  wherein  the  crime  shall  have  been  com 
mitted,  which  district  shall  have  been  previously 
ascertained  by  law,  and  be  informed  of  the  na 
ture  and  cause  of  the  accusation;  to  be  con 
fronted  with  the  witnesses  against  him,  to  have 
compulsory  process  for  obtaining  witnesses  in 
his  favor ;  and  to  have  the  assistance  of  counsel 
for  his  defense."  (Art.  VI  of  the  amendments  to 
the  Constitution.} 


408 


APPENDIX. 


These  provisions  of  the  Constitution  arc  in 
tended  to  fling  around  the  life,  liberty  and  prop 
erty  of  a  citizen  all  the  guarantees  of  a  jury 
trial.  These  constitutional  guarantees  can  not 
be  estimated  toohighly,  or  protected  toosacredly. 
The  reader  of  history  knows  that  for  many 
weary  ages  the  people  suifered  for  the  want  of 
them;  it  would  not  only  be  stupidity,  but  mad 
ness  in  us  not  to  preserve  them.  No  man  has 
a  deeper  conviction  of  their  value,  or  a  more 
sincere  desire  to  preserve  and  perpetuate  them 
than  I  have. 

Nevertheless,  these  exalted  and  sacred  pro 
visions  of  the  Constitution  must  not  be  read 
alone  and  by  themselves,  but  must  be  read  and 
taken  in  connexion  with  other  provisions.  The 
Constitution  was  framed  by  great  men — men  of 


learning  and  large  experience,  and  it  is  a  won-  |  usages  of  war." 
derful  monument  of  their  wisdom.     Well  versed   of  the  law. 


against  the  laws  of  war  must  be  dealt  with  and 
punished  under  the  Constitution,  as  the  laws  of 
war,  they  being  part  of  the  law  of  nations  di 
rect;  crimes  must  be  dealt  with  and  punished  as 
the  Constitution,  and  laws  made  in  pursuance 
thereof,  may  direct, 

Congress  has  not  undertaken  to  define  the 
code  of  war  nor  to  punish  offenses  against  it. 
Iii  the  case  of  a  spy,  Congress  has  undertaken 
to  say  who  shall  be  deemed  a  spy,  and  how  he 
shall  be  punished.  But  every  lawyer  knows 
that  a  spy  was  a  well-known* offender  under  the 
laws  of  war,  and  that  under  and  according  to 
those  laws  he  could  have  been  tried  and  pun 
ished  without  an  act  of  Congress.  This  is  ad 
mitted  by  the  act  of  Congress,  when  it  says  that 
he  shall  suffer  death  ''according  to  the  law  and 


The  act  is  simply  declaratory 


in  the  history  of  the  world,  they  knew  that  the  That  portion  of  the  Constitution  which  de- 
nation  for  which  they  were  forming  a  govern-  clares  that  "no  person  shall  be  deprived  of  his 
ment  would,  unless  all  history  was  false,  have  { life,  liberty  or  property  without  due  process  of 

law,"  has  such  direct  reference  to,  and  connec 
tion  with,  trials  for  crime  or   criminal  prosecu- 


wars,  foreign  and  domestic.     Hence  the  govern 
ment  framed  by  them  is  clothed  with  the  power 


to  make  and  carry  on  war.  As  has  been  shown, 
when  war  comes,  the  laws  of  war  come  with  it. 
Infractions  of  the  laws  of  nations  are*  not  de 
nominated  crimes,  but  offenses.  Hence  the  ex 
pression  in  the  Constitution  that  "Congress 
shall  have  power  to  define  and  punish  *  # 
offenses  against  the  law  of  nations."  Many  of 
the  offenses  against  the  law  of  nations  for  which 
a  man  may,  by  the  laws  of  war,  lose  his  life,  his 
liberty  or  his  property,  are  not  crimes.  It  is  an 
offense  against  the  law  of  nations  to  break  a 
lawful  blockade,  and  for  which  a  forfeiture  of 
the  property  is  the  penalty,  and  yet  the  running 
a  blockade  has  never  been  regarded  a  crime ; 
to  hold  communication  or  intercourse  with  the 
enemy  is  a  high  offense  against  the  laws  of  war, 
and  for  which  those  laws  prescribe  punishment, 
and  yet  it  is  not  a  crime;  to  act  as  a  spy  is  an 
offense  against  the  laws  of  war,  and  the  punish 
ment  for  wThlch  in  all  ages  has  been  death,  and 
yet  it  is  not  a  crime;  to  violate  a  flag  of  truce 
is  an  offense  against  the  laws  of  war,  arid  yet 
not  a  crime  of  which  a  civil  court  can  take  cog 
nizance;  to  unite  with  banditti,  jayhawkers, 
guerrillas  or  any  other  unauthorized  marauders 
is  a  high  offense  against  the  laws  of  war  ;  the 
offense  is  complete  when  the  band  is  organized 
or  joined.  The  atrocities  committed  by  such  a 
band  do  not  constitute  the  offense,  but  make  the 
reasons,  and  sufficient  reasons  they  are,  why 
such  banditti  are  denounced  by  the  laws  of  Avar. 
Some  of  the  offenses  against  the  laws  of  war  arc 
crimes,  and  some  not.  Because  they  are  crimes 
they  do  not  cease  to  be  offenses  against  those 
laws;  nor  because  they  are  not  crimes  or  mis 
demeanors  do 
the  laws  of  w 
murderer,  as  such,  must  be  proceeded  against  in 
the  form  and  manner  pi'escribed  in  the  Consti 
tution;  in  committing  the  murder  an  offense 
may  also  have  been  committed  against  the  laws 
of  war;  for  that  offense  he  must  answer  to  the 
laws  of  war,  and  the  tribunals  legalized  by  that 
law. 

There  is,  then,  an  apparent  but  no  real  con 
flict  in   the  constitutional  provisions.      Offenses 


tions,  that  comment  upon  it  would  seem  to  be 
unnecessary.  Trials  for  offenses  against  the 
laws  of  war  are  not  embraced  or  intended  to  be 
embraced  in  those  provisions.  If  this  is  not  so, 
then  every  man  that  kills  another  in  battle  is  a 
murderer,  for  he  deprived  a  '-person  of  life 
without  that  duo  process  of  law"  contemplated 
by  this  provision ;  every  man  that  holds  an 
other  as  a  prisoner  of  war  is  liable  for  false 
imprisonment,  as  he  docs  so  without  that 
due  process  of  law  contemplated  by  this  pro 
vision  ;  every  soldier  that  marches  across 
a  field  in  battle  array  is  liable  to  an  action 
of  trespass,  because  he  does  it  without  that 
same  due  process.  The  argument  that  flings 
around  offenders  against  the  laws  of  war  these 
guarantees  of  the  Constitution  would  convict  all 
the  soldiers  of  our  army  of  murder;  no  prison 
ers  could  be  taken  and  held  ;  the  army  could 
not  move.  The  absurd  consequences  that  would 
of  necessity  flow  from  such  an  argument  show 
that  it  can  not  be  the  true  construction — it  can 
not  be  what  was  intended  by  the  framers  of  the 
instrument.  One  of  the  prime  motives  for  the 
Union  and  a  Federal  Government  was  to  coni'er 
the  powers  of  war.  If  any  provisions  of  the 
Constitution  are  so  in  conflict  with  the  power  to 
carry  on  war  as  to  destroy  and  make  it  value 
less,  then  the  instrument,  instead  of  being  a 
great  and  wise  one,  is  a  miserable  failure,  a 
felo  de  se. 

If  a  man  should  sue  out  his  writ  of  habeas 
corpus,  and  the  return  shows  that  he  belonged  to 
the  army  or  navy,  and  was  held  to  be  tried  for 
some  offense  against  the  rules  and  articles  of 


they  fail  to   be   offenses   against    war,  the  writ  should  be  dismissed,  and  the  party 
'ar.     Murder  is  a  crime,  and  the   remanded    to    answer    to    the    charges.     So,  in 


time  of  war,  if  a  mun  should  sue  out  a  writ  of 
habeas  corpus,  and  it  is  made  appear  that  he  is 
in  the  hands  of  the  military  as  a  prisoner  of 
war,  the  writ  should  be  dismissed  and  the  pris 
oner  remanded  to  be  disposed  of  as  the  laws  and 
usages  of  war  require.  If  the  prisoner  be  a 
regular  unoffending  soldier  of  the  opposing 
party  to  the  war,  he  should  be  treated  with  all 
the  courtesy  and  kindness  consistent  Avith  his 


APPENDIX. 


409 


safe  custody;  if  he  has  offended  against  the'  The  law  of  nations,  which  is  the  result  of  the 
laws  of  war,  he  should  have  such  trial  and  be  ,  experience  and  wisdom  of  ages,  lias  decided  that 
punished  as  the  laws  of  war  require.  A  spy,  !  jayhawkers,  banditti,  etc.,  are  offenders  against 
though  a  prisoner  of  war,  may  be  tried,  con- !  the  laws  of  nature  and  of  war,  and  as  such 
demned  and  executed  by  a  military  tribunal  !  amenable  to  the  military.  Our  Constitution  has 
without  a  breach  of  the  Constitution.  A  bush-  i  made  those  laws  a  part  of  the  law  of  the  land, 
whacker,  a  jayliawker,  a  bandit,  a  war  rebel,  >.  Obedience  to  the  Constitution  and  the  law, 
an  assassin,  being  public  enemies,  may  be  tried,  j  then,  requires  that  the  military  should  do  their 
condemned  and  executed  as  offenders  against;  whole  duty;  they  must  not  only  meet  and  fight 
the  laws  of  war.  The.  soldier  that  would  fail  to  [the  enemies  of  the  country  in  open  battle,  but 
try  a  spy  or  bandit  after  his  capture,  would  be  they  must  kill  or  take  the  secret  enemies  of  the 
as  derelict,  in  duty  as  if  he  were  to  fail  to  cap-  country,  and  try  and  execute  them  according 
ture  ;  he  is  as  much  bound  to  try  and  to  execute,  to  the  laws  of  war.  The  civil  tribunals  of  the 
if  guilty,  as  he  is  to  arrest;  the  same  law  that;  country  can  not  rightfully  interfere  with  the 


makes  it  his  duty  to  pursue  and  kill  or  capture, 
makes  it  his  duty  to  try  according  to  the  usages 


military  in  the  performance  of  their  high,  ardu 
ous  and  perilous,  but  lawful  duties.     That  Booth 


of  war.     The  judge  of  'a  civil  court  is  not  more  j  and  his  associates  were  secret  active  public  ene- 
strongly  bound  under  the  Constitution  and  the   mies,  no  mind  that  contemplates  the  facts  can 
law  to  try  a  criminal  than  is  the  military  to  try 
an  offender  against  the  laws  of  war. 


The  fact  that  the  civil  courts  are  open  does  not 
affect  the  right  of  the  military  tribunal  to  hold 
as  a  prisoner  and  to  try.  The  civil  courts  have  no 
more  right  to  prevent  the  military,  in  time  of 
war,  from  trying  an  offender  against  the  laws 
of  war  than  they  have  a  right  to  interfere  with 
and  prevent  a  battle.  A  battle  may  be  lawfully 
fought  in  the  very  view  and  presence  of  a  court ; 
so  a  spy,  a  bandit  or  other  offender  against  the 
law  of  war,  may  be  tried,  and  tried  lawfully, 
when  and  where  the  civil  courts  are  open  and 
transacting  the  usual  business. 

The  laws  of  war  authorize  human  life  to  be 
taken  without  legal  process,  or  that  legal  pro 
cess  contemplated  by  those  provisions  in  the 
Constitution  that  are  relied  upon  to  show  that 
military  judicial  tribunals  are  unconstitutional. 
Wars  should  be  prosecuted  justly  as  well  as 
bravely.  One  enemy  in  the  power  of  another, 
whether  he  be  an  open  or  a  secret  one,  should 
not  be  punished  or  executed  without  trial.  If 
the  question  be  one  concerning  the  laws  of  war, 
he  should  be  tried  by  those  engaged  in  the  war; 
they  and  they  only  are  his  peers.  The  military 
must  decide  whether  he  is  or  not  an  active 
participant  in  the  hostilities.  If  he  is  an  active 
participant  in  the  hostilities,  it  is  the  duty  of 
the  military  to  take  him  a  prisoner  without  war 
rant  or  other  judicial  process,  and  dispose  of 
him  as  the  laws  of  war  direct. 

It  is  curious  to  see  one  and  the  same  mind 
justify  the  killing  of  thousands  in  battle  be 
cause  it  is  done  according  to  the  laws  of  war, 
and  yet  condemning  that  same  law  when,  out.  of 
regard  for  justice  and  with  the  hope  of  saving 
life,  it  orders  a  military  trial  before  the  enemy 
are  killed.  The  love  of  law,  of  justice  and  the 
wish  to  save  life  and  suffering,  should  impel  all 
good  men  in  time  of  war  to  uphold  and  sustain 
the  existence  and  action  of  such  tribunals.  The 
object  of  such  tribunals  is  obviously  intended 
to  save  life,  and  when  their  jurisdiction  is  con 
fined  to  offenses  against  the  laws  of  war,  that  is 
their  effect.  They  prevent  indiscriminate 
slaughter;  they  prevent  men  from  being  pun 
ished  or  killed  upon  mere  suspicion. 


doubt.     The  exclamation  used  by  him  when  he 
escaped  from  the  box  on  to  the  stage,  after  he  had 


fired  the  fatal  shot,  sic  semper  tyrannis,  and  his 
dying  message,  "  Say  to  my  mother  that  I  died 
for  my  country,"  show  that  he  was  not  an  as 
sassin  from  private  malice,  but  that  he  acted  as 
a  public  foe.  Such  a  deed  is  expressly  laid 
down  by  Vattel,  in  his  work  on  the  law  of  na 
tions,  as  an  offense  against  the  laws  of  war, 
and  a  great  crime.  "1  give,  then,  the  name  of 
assassination  to  a  treacherous  murder,  whether 
the  perpetrators  of  the  deed  be  the  subjects  of 
the  party  whom  we  cause  to  be  assassinated  or 
of  our  own  sovereign,  or  that  it  be  executed  by 
any  other  emissary  introducing  himself  as  a 
suppliant,  a  refugee  or  a  deserter,  or,  in  fine,  as 
a  stranger."  (  Vattel,  339.) 

Neither  the  civil  nor  the  military  department 
of  the  Government  should  regard  itself  as  wiser 
and  better  than  the  Constitution  and  the  laws 
that  exist  under  or  are  made  in  pursuance  thereof. 
Each  department,  should,  in  peace  and  in  war, 
confining  itself  to  its  own  proper  sphere  of  ac 
tion,  diligently  and  fearlessly  perform  its  legiti 
mate  functions,  and  in  the  mode  prescribed  by 
the  Constitution  and  the  law.  Such  obedience 
to  and  observance  of  law  will  maintain  peace 
when  it  exists,  and  will  soonest  relieve  the 
country  from  the  abnormal  state  of  war. 

My  conclusion,  therefore,  is,  that  if  the  per 
sons  who  are  charged  with  the  assassination  of 
the  President  committed  the  deed  as  public  ene 
mies,  as  I  believe  they  did,  and  whether  they  did 
or  not  is  a  question  to  be  decided  by  the  tribu 
nal  before  which  they  are  tried,  they  not  only 
can,  but  ought  to  be  tried  before  a  military  tri 
bunal.  If  the  persons  charged  have  offended 
against  the  laws  of  war,  it  would  be  as  palpa 
bly  wrong  for  the  military  to  hand  them  over 
to  the  civil  courts,  as  it  would  be  wrong  in  a 
civil  court  to  convict  a  man  of  murder  who  had, 
in  time  of  war,  killed  another  in  battle. 

I  am,  sir,  most  respectfully,  your  obedient 
servant, 


To  the  President. 


JAMES  SPEED, 
Attorney  General. 


INSTRUCTIONS 


FOR    THE 


GOVERNMENT  OF  ARMIES  OF    THE    UNITED    STATES 

IN  THE  FIELD. 


GENERAL  ORDERS,  NO.  100. 


LTMENT,  "I 

's  OFFICE,       L 
24,  1803.      J 


WAR  DEPARTMENT, 
ADJUTANT  GENERAL' 
Washington,  April 
The  following '-Instructions  for  the  Govern 
ment  of  Armies    of  the  United    States   in  the 
Field,''  prepared  by  Francis  Leiber,  L.  LD.,  and 
revised  by  a  Board  of  Officers,  of  which  Major- 
General  E.   A.   Hitchcock  is  President,  having 
been  approved  by  the  President  of  the  United 
States,  he  commands  that  they  be  published  for 
the  information  of  all  concerned. 

BY  ORDER  OF  THE  SECRETARY  OF  WAR  : 

E.  D.  TOWN  SEND, 
Assistant  Adjutant  General. 


SECTION  I. 

Martial  Law — Military  Jurisdiction — MilHari/  Ne 
cessity — Retalia  tion. 

1.  A  place,  district  or  country  occupied  by 
an  enemy,  stands,  in  consequence  of  the  occupa 
tion,  under  the  martial  law  of  the  invading  or 
occupying  army,  whether  any  proclamation  de 
claring  martial  law,  or  any  public  warning  to 
the  inhabitants  has  been  issued  or  not.  Martial 
law  is  the  immediate  and  direct  effect  and  con 
sequence  of  occupation  or  conquest. 

The  presence  of  a  hostile  army  proclaims  its 
martial  law. 

_  2.  Martial  law  does  not  cease  during  the  hos 
tile  occupation,  except  by  special  proclamation, 
ordered  by  the  Commander-in-Chief,  or  by 
special  mention  in  the  treaty  of  peace  conclud 
ing  the  war,  when  the  occupation  of  a  place  or 
territory  continues  beyond  the  conclusion  of 
peace  as  one  of  the  conditions  of  the  same. 

3.  Martial  law  in  a  hostile  country  consists 
in  the  suspension,  by  the  occupying  military 
authority,  of  the  criminal  and  civil  law,  and  of 
the  domestic  administration  and  government  in 
the  occupied  place  or  territory,  and  in  the  sub 
stitution  of  military  rule  and  force  for  the  same, 
as  well  as  in  the  dictation  of  general  laws,  as 
far  as  military  necessity  requires  this  suspen 
sion,  substitution  or  dictation. 

The  commander  of  the  forces  may  proclaim 
that  the  administration  of  all  civil  and  penal 
law  shall  continue,  either  wholly  or  in  part,  as 
in  times  of  peace,  unless  otherwise  ordered  by 
the  military  authority. 
410 


4.  Martial  law  is  simply  military  authority 
exercised    in    accordance    with    the   laws   and 
usages  of  war.     Military  oppression  is  not  mar 
tial  law ;  it  is  the  abuse  of  the  power  which  that 
law  confers.     As   martial   law   is  executed  by 
military    force,    it    is    incumbent    upon    those 
who  administer  it  to  be  strictly  guided  by  the 
principles  of  justice,  honor  and  humanity — vir- 

:  tues  adorning  a  soldier  even  more  than  other 
men,  for  the  very  reason  that  he  possesses  the 
power  of  his  arms  against  the  unarmed. 

5.  Martial    law  should   be  less   stringent  in 
places  and  countries  fully  occupied  and  faii'lv 
conquered.     Much  greater  severity  may  be  ex 
ercised  in  places  or  regions  where  actual  hos 
tilities  exist,  or  are  expected  and  must  be  pre 
pared  for.     Its  most  complete  sway  is  allowed — 
even  in  the  commander's  own   country — when 
face  to  face  with  the  enemy,  because  of  the  ab 
solute  necessities  of  the  case,  and   of  the  para 
mount  duty  to   defend  the  country  against  in 
vasion. 

To  save  the  country  is  paramount  to  all  other 
considerations. 

0.  All  civil  and  penal  law  shall  continue  to 
take  its  usual  course  in  the  enemy's  places  and 
territories  under  martial  law,  unless  interrupted 
or  stopped  by  order  of  the  occupying  military 
power  ;  but  all  the  functions  of  the  hostile  gov 
ernment — legislative,  executive  or  administra 
tive — whether  of  a  general,  provincial  or  local 
charactei',  cease  under  martial  law.  or  continue 
only  with  the  sanction,  or  if  deemed  necessary, 
the  participation  of  the  occupier  or  invader. 

7.  Martial  law  extends   to  property,   and  to 
persons,  whether  they  are  subjects  of  the  enemy 
or  aliens  to  that  government. 

8.  Consuls,  among  American  and  European 
nations,  are  not  diplomatic  agents.     Neverthe 
less,  their  offices  and  persons  will  be  subjected 
to  martial  law  in  cases  of  urgent  necessity  only: 
their  property  and  business  are  not  exempted. 
Any  delinquency  they  commit  against  the  es 
tablished  military  rule  may  be  punished  as  in  the 
case  of  any  other  inhabitant,  and  such  punish 
ment  furnishes  no  reasonable  ground  for  inter 
national  complaint. 

9.  The   functions  of  Ambassadors,  Ministers 
or  other  diplomatic  agents,  accredited  by  neu 
tral  powers  to  the  hostile  government,  cease,  so 
far  as  regards  the   displaced  government;   but 
the    conquering   or   occupying   power  usually 
recognizes    them   as  temporarily  accredited  to 
itself. 


APPENDIX. 


411 


10.  Martial  law  affects  chiefly  the  police  and 
collection  of  public  revenue  and  taxes,  whether 
imposed  by  the  expelled  government  or  by  the 
invader,  and  refers  mainly  to  the  support  and 
efficiency  of  the  army,  its  safety,  and  the  safety 
of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all 
cruelty  and  bad  faith  concerning  engagements 
concluded  with  the  enemy  during  the  war,  but 
also  the  breaking  of  stipulations  solemnly  con 
tracted  by  the  belligerents  in  time  of  peace,  and 
avowedly  intended  to  remain  in  force  in  case 
of  war  between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transac 
tions  for  individual  gain  ;  all  acts  of  private 
revenge,  or  connivance  at  such  acts.  Offenses 


16.  Military  necessity  does  not  admit  of  cru 
elty,  that  is,  the  infliction  of  suffering  for  the 
sake  of  suffering  or  for  revenge,  nor  of  maim 
ing  or  wounding  except  in  fight,  nor  of  tortures 
to  extort  confessions.     It  does  not  admit  of  the 
use  of  poison   in   any  way,  nor  of  the  wanton 
devastation  of  a  district.     It  admits  of  decep 
tion,  but  disclaims  acts  of  perfidy;  and,  in  gen 
eral,  military  necessity  does  not  include  any  act 
of  hostility  which  makes  the  return  of  peace  un 
necessarily  difficult. 

17.  War  is  not  carried  on  by  arms  alone.     It 
is  lawful  to  starve  the  hostile  belligerent,  armed 
or  unarmed,  so  that  it  leads  to  the  speedier  sub 
jection  of  the  enemy. 

18.  When  the  commander  of  a  besieged  place 


to    the    contrary  shall    be    severely   punished,   expels  the  non-combatants,  in  order   to  lessen 
and  especially  so   if  committed  by  officers.      '  the  number  of  those  who  consume  his  stock  of 
12.  Whenever  feasible,  martial  law  is  carried  j  provisions,    it   is   lawful,   though   an    extreme 
out  in  cases  of  individual  offenders  by  military   measure,  to  drive  them  back,  so  as  to  hasten  on 


courts  ;  but  sentences  of  death  shall  be  executed 
only  with  the  approval  of  the  Chief  Executive, 
provided  the  urgency  of  the  case  does  not  re 
quire  a  speedier  execution,  and  then  only  with 
the  approval  of  the  chief  commander. 

13.  Military  jurisdiction   is   of    two    kinds : 
first,  that  which   is   conferred    and   defined  by 
statute ;  second,  that  which  is  derived  from  the 
common  law  of  war.     Military  offenses  under 
the  statute  law  must  be   tried   in  the  manner 
therein  directed;  but  military   offenses    which 
do  not   come  within   the  statute  must  be  tried 
and  punished   under  the  common   law  of  war. 
The  character  of  the  courts  which  exercise  these 
jurisdictions  depends   upon  the  local  laws  of 
each  particular  counti-y. 

In  the  armies  of  the  United  States  the  first  is 
exercised  by  courts-martial,  while  cases  which 
do  not  come  within  the  "  Rules  and  Articles  of 
War,"  or  the  jurisdiction  conferred  by  statute 
on  courts-martial,  are  tried  by  military  com 
missions. 

14.  Military    necessity,    as    understood    by 
modern  civilized  nations,  consists  in  the  neces 
sity  of  those  measures  which  are  indispensable 
for  securing  the  ends  of  the  war,  and  which  are 
lawful  according  to  the  modern  law  and  usages 
of  war. 

15.  Military  necessity  admits   of  all   direct 
destruction  of  life  or  limb  of  armed  enemies,  and 
of  other  persons  whose  destruction  is  incident 
ally  unavoidable  in  the  armed  contests  of  the 
war;  it  allows  of  the  capturing  of  every  armed 
enemy,  and  every  enemy  of  importance  to  the 
hostile    government,  or  of  peculiar    danger  to 
the  captor;  it  allows  of  all  destruction  of  prop 
erty,  and  obstruction  of  the  waya  and  channels 
of  traffic,  travel  or  communication,  and  of  all 
withholding  of  sustenance  or  means  of  life  from 
the  enemy;  of  the  appropriation  of  whatever  an 
enemy's  country  affords  necessary  for  the  sub 
sistence  and  safety  of  the  army,  and  of  such 
deception  as  does  not  involve  the  breaking  of 
good  faith  either  positively  pledged,  regarding 
agreements   entered    into  during    the  war,   or 
tmpposed   by  the  modern  law  of  war  to   exist. 
Men  who  take  up  arms  against  one  another  in 
public  war,  do  not  cease,  on  this  account,  to  be 
moral  beings,  responsible  to  one  another  and  to 
God. 


the  surrender. 

19.  Commanders,  whenever  admissible,  inform 
the  enemy  of  their  intention  to  bombard  a  place, 
so  that   the  non-combatants,  and  especially  the 
women   and   children,  may  be  removed  before 
the  bombardment  commences.     But  it  is  no  in 
fraction  of  the  common  law  of  war  to  omit  thus 
to  inform  the  enemy.     Surprise  may  be  a  ne 
cessity. 

20.  Public  war  is  a  state  of  armed  hostility 
between  sovereign  nations  or  governments.  Itis 
a  law  and  requisite  of  civilized  existence  that  men 
live  in  political,  continuous   societies,  forming 
organized  units,  called  states  or  nations,  whose 
constituents   bear,    enjoy  and    suffer,  advance 
and  retrograde  together,  in  peace  and  in  war. 

21.  The  citizen  or  native  of  a  hostile  country 
is  thus  an  enemy,  as  one  of  the  constituents  of 
the  hostile  state  or  nation,  and  as  such  is  sub 
jected  to  the  hardships  of  the  war. 

22.  Nevertheless,  as  civilization  has  advanced 
during  the  last  centuries,  so  has  likewise  steadily 
advanced,  especially  in  war  on  land,  the  dis 
tinction  between  the  private  individual  belong 
ing  to  a  hostile  country  and  the  hostile  country 
itself,  with  its  men  in  arms.     The  principle  has 
been  more  and  more  acknowledged  that  the  un 
armed  citizen  is  to  be  spared  in  person,  property 
and  honor  as  much  as  the  exigencies  of  war  will 
admit. 

23.  Private  citizens  are  no  longer  murdered, 
enslaved  or  carried  off  to  distant  parts,  and  the 
inoffensive  individual  is  as  little  disturbed  in 
his  private  relations  as  the  commander  of  the 
hostile  troops  can  afford  to  grant  in  the  overrul 
ing  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times 
was,  and  continues  to  be  with  barbarous  armies, 
that  the  private  individual  of  the  hostile  coun 
try  is  destined  to  suffer  every  privation  of  lib 
erty   and  protection,  and   every  disruption  of 
family  ties.     Protection   was,  and  still  is  with 
uncivilized  people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans, 
and  their  descendants  in   other  portions  of  the 
globe,  protection  of  the   inoffensive  citizen  of 
the  hostile  counti-y  is   the  rule;  privation  and 
disturbance  of  private  relations  are  the  excep 
tions. 

26.  Commanding    generals    may   cause    the 


412 


APPENDIX. 


magistrates  and  civil  officers  of  the  hostile  coun 
try  to  take  the  oath  of  temporary  allegiance,  or 
an  oath  of  fidelity  to  their  own  victorious  gov 
ernment  or  rulers,  and  they  may  expel  every 
one  who  declines  to  do  so.  But  whether  they  do 
so  or  not,  the  people  and  their  civil  officers  owe 
strict  obedience  to  them  as  long  as  they  hold 
sway  over  the  district  or  country,  at  the  peril 
of  their  lives. 

27.  The  law  of  war  can  no  more  wholly  dis 
pense  with  retaliation  than  can  the  law  of  na 
tions,  of  which  it  is   a  branch.     Yet   civilized 
nations  acknowledge  retaliation  as  the  sternest 
feature  of  war.     A  reckless  enemy  often  leaves 
to  his  opponent  no  other  means  of  securing  him 
self  against  the  repetition  of  barbarous  outrage. 

28.  Ketaliation   will,  therefore,  never  be  re 
sorted  to  as  a  measure  of  mere  revenge,  but  only 
as  a  means  of  protective  retribution,  and,  more 
over,   cautiously   and  unavoidably;  that   is   to 
say,  retaliation   shall  only  be  resorted  to  after 
careful    inquiry  into   the  real   occurrence,  and 
the  character  of  the  misdeeds  that  may  demand 
retribution. 

Unjust  or  inconsiderate  retaliation  removes 
the  belligerents  farther  and  farther  from  the 
mitigating  rules  of  a  regular  war,  and  by  rapid 
steps  leads  them  nearer  to  the  internecine  wars 
of  savages. 

29.  Modern    times    are    distinguished    from 
earlier  ages  by  the  existence,  at  one   and  the 
same  time,  of  many  nations  and  great  govern 
ments  related  to  one  another  inclose  intercourse. 

Peace  is  their  normal  condition ;  war  is  the 
exception.  The  ultimate  object  of  all  modern 
war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the 
better  it  is  for  humanity.  Sharp  wars  are  brief. 

30.  Ever  since  the  formation   and  co-exist 
ence  of  modern   nations,  and   ever  since  wars 
have  become  great  national  wars,  war  has  come 
to  be  acknowledged   not  to  be  its  own  end,  but 
the  means  to  obtain  great  ends  of  state,  or  to 
consist  in  defense  against  wrong;  and  no  con 
ventional  restriction  of  the  modes  adopted  to  in 
jure  the  enemy  is  any  longer  admitted;  but  the 
law  of  war  imposes  many  limitations  and   re 
strictions   on    principles   of  justice,   faith  and 
honor. 

SECTION  II. 

Public  and  private  property  of  the  enemy — Protec 
tion  of  persons,  and  especially  women ;  of  religion, 
the  arts  and  sciences — Punishment  of  crimes 
ayainst  the  inhabitants  of  hostile  countries. 

31.  A  victorious  army  appropriates  all  public 
money,  seizes  all  public  movable  property  until 
further  direction  by  its  government,  and  seques 
ters  for  its  own  benefit  or   that  of  its   govern 
ment  all  the  revenues  of  real  property  belong 
ing  to  the  hostile  government  or  nation.     The 
title  to  such  real  property  remains  in  the  abey 
ance  during  military  occupation,  and  until  the 
conquest  is  made  complete. 

32.  A  victorious    army,  by  the  martial  power 
inherent  in  the  same,  may  suspend,  change,  or 
abolish,  as   far  as   the    martial   power  extends, 
the  relations  which  arise  from  the  service  due, 


j  according  to  the  existing  laws  of  the  invaded 
|  country,  from  one  citizen,  subject,  or  native  of 
i  the  same  to  another. 

The  commander  of  the  army  must  leave  it  to 
the  ultimate  treaty  of  peace  to  settle  the  per 
manency  of  this  change. 

33.  It  is  no  longer  considered  lawful — on  the 
contrary,  it  is  held  to  be  a  serious  breach  of  the 
law  of  war — to  force  the  subjects  of  the  enemy 
into  the  service  of  the  victorious  government, 
except  the  latter  should  proclaim,  after  a  fair 
and  complete  conquest  of  the  hostile  country  or 
district,  that  it  is  resolved  to  keep  the  country, 
district,  or  place  permanently  as  its  own,  and 
make  it  a  portion  of  its  own  country. 

34.  As  a  general  rule,  the  property  belong 
ing  to   churches,  to    hospitals,  or   other  estab 
lishments  of  an  exclusively  charitable  charac 
ter,  to  establishments  of  education,  or  founda- 

I  tions  for  the  promotion  of  knowledge,  whether 
public  schools,  universities,  academies  of  iearn- 

I  ing  or  observatories,  museums  of  the  line  arts, 
or  of  a  scientific  character — such  property  is 
not  to  be  considered  public  property  in  the 
sense  of  paragraph  31 ;  but  it  may  be  taxed  or 
used  when  the  public  service  may  require  it. 

35.  Classical  works  of  art,   libraries,   scien 
tific  collections,  or  precious  instruments,  such 
as  astronomical  telescopes,  as  well  as  hospitals, 
must  be  secured  against  all  avoidable  injury, 
even    when    they    are    contained    in    fortified 
places  while  besieged  or  bombarded. 

36.  If    such   works    of  art,   libraries,   collec 
tions,  or  instruments  belonging  to  a  hostile  na 
tion   or  government,   can  be   removed   without 
injury,  the  ruler  of  the  conquering  state  or  na 
tion  may  order  them  to  be  seized  and  removed 
for  the  benefit  of  the  said  nation.     The  ultimate 
ownership  is  to  be  settled  by  the  ensuing  treaty 
of  peace. 

In  no  case  shall  they  be  sold  or  given  away, 
if  captured  by  the  armies  of  the  United  States, 
nor  shall  they  ever  be  privately  appropriated, 
or  wantonly  destroyed  or  injured. 

37.  The  United  States  acknowledge  and  pro 
tect,  in  hostile  countries  occupied  by  them,  re 
ligion  and  morality  ;   strictly  private  property  | 
the  persons  of  the  inhabitants,  especially  those 
of  women  ;  and  the  sacredncss  of  domestic  re 
lations.     Offenses  to  the  contrary  shall  be  rig 
orously  punished. 

This  rule  does  not  interfere  with  the  right  of 
the  victorious  invader  to  tax  the  people  or 
their  property,  to  levy  forced  loans,  to  billet 
soldiers,  or  to  appropriate  property,  especially 
houses,  land,  boats  or  ships,  and  churches,  for 
temporary  and  military  uses. 

38.  Private   property,    unless    forfeited    by 
crimes  or  by  offenses  of  the  owner,  can  be  seized 
only  by  way  of  military  necessity,  for  the  sup 
port     or   other  benefit  of    the   army  or  of  the 
United  States. 

If  the  owner  has  not  fled,  the  commanding 
officer  will  cause  receipts  to  be  given,  which 
may  serve  the  spoliated  owner  to  obtain  in 
demnity. 

30.  The  salaries  of  civil  officers  of  the  hos 
tile  government  who  remain  in  the  invaded 
territory,  and  continue  the  work  of  their  office, 
and  can  continue  it  according  to  the  circum- 


APPENDIX. 


413 


stances  arising  out  of  the  war — such  as  judges, 
administrative  or  police  officers,  officers  of  city 
or  communal  governments — are  paid  from  the 
public  revenue  of  the  invaded  territory,  until 
the  military  government  has  reason  wholly  or 
partially  to  discontinue  it.  Salaries  or  in 
comes  connected  with  purely  honorary  titles 
are  always  stopped. 

40.  There  exists  no  law  or  body  of  authori 
tative  rules  of  action  between  hostile  armies, 
except  that  branch  of  the  law  of  nature  and 
nations  which  is  called  the  law  and  usages  of 
war  on  land. 

41.  All  municipal  law  of  the  ground  on  which 
the  armies  stand,  or  of  the  countries  to  which 
they  belong,  is  silent  and  of  no  effect  between 
armies  in  the  field. 

42.  Slavery,  complicating  and    confounding 
the  ideas  of  property  (that   is   of  a  thing},  and 
of  personalty  (that  is   of  humanity),  exists  ac 
cording  to  municipal  or   local   law  only.     The 
law  of  nature  and  nations  has  never  acknowl 
edged  it.     The  digest  of  the  Roman  law  enacts 
the  early  dictum  of  the  pagan  jurist,  that  "  so 
far  as  the  law  of  nature  is  concerned,  all  men 
are  equal."     Fugitives  escaping  from  a  country 
in   which   they  were   slaves,   villains  or  serfs, 
into  another  country,  have,  for  centuries  past, 
been  held  free  and  acknowledged  free  by  judi 
cial    decisions    of    European    countries,*  even 
though    the  municipal   law  of  the   country  in 
which  the  slave  had  taken  refuge  acknowledged 
slavery  within  its  own  dominions. 

43.  Therefore,  in  a  war  between  the  United 
States    and    a    belligerent    which    admits    of 
slavery,   if  a   person  held  in  bondage  by  that 
belligerent  be  captured  by,  or  come  as  a  fugi 
tive  under,  the  protection  of  the  military  forces 
of  the  United   States,  such  person   is   immedi 
ately  entitled  to  the  rights  and  privileges  of  a 
freeman.     To  return  such  person  into  slavery 
would  amount  to  enslaving  a  free  person,  and 
neither  the  United  States  nor  any  officer  under 
their  authority  can  enslave  any  human  being. 
Moreover,  a  person  so  made  free  by  the  law  of 
war  is  under  the  shield  of  the  law  of  nations, 
and  the  former  owner  or  State  can  have,  by  the 
law  of  post-limiriy,  no  belligerent  lien  or  claim 
of  service. 

44.  All  wanton   violence   committed  against 
persons  in  the  invaded  country,  all  destruction 
of  property  not  commanded  by  the  authorized 
officer,  all  robbery,  all  pillage  or  sacking,  even 
after  taking  a  place  by  main  force,  all  rape,  all 
wounding,  maiming  or  killing  of  such  inhab 
itants,    are   prohibited    under   the   penalty  of 
death,  or  such  other  severe  punishment  as  may 
seem  adequate  for  the  gravity  of  the  offense. 

A  soldier,  officer  or  private,  in  the  act  of 
committing  such  violence,  and  disobeying  a 
superior  ordering  him  to  abstain  from  it,  may 
be  lawfully  killed  on  the  spot  by  such  superior. 

45.  All  captures  and  booty  belong,  accoi-ding 
to  the  modern  law  of  war,  primarily,  to  the  gov 
ernment  of  the  captor. 

Prize  money,  whether  on  sea  or  land,  can 
now  only  be  claimed  under  local  law. 

46.  Neither  officers   nor  soldiers   are  allowed 
to  make  use  of  their  position  or  power  in  the 
hostile  country  for  private  gain,   not  even  for 


commercial  transactions  otherwise  legitimate. 
Offenses  to  the  contrary  committed  by  commis 
sioned  officers  will  be  punished  with  cashier 
ing,  or  such  other  punishment  as  the  nature  of 
the  offense  may  require  ;  if  by  soldiers,  they  shall 
be  punished  according  to  the  nature  of  the  offense, 

47.  Crimes   punishable   by   all    penal   codes, 
such   as    arson,    murder,    maiming,    assaults, 
highway  robbery,    theft,   burglary,    fraud,    for 
gery  and  rape,  if  committed  by  an   American 
soldier  in  a  hostile  country  against  its  inhabit 
ants,  are  not  only  punishable  as   at   home,  but 
in  all  cases  in  which  death  is  not  inflicted,  the 
severer  punishment  shall  be  preferred. 

SECTION  III. 

Deserters — Prisoners   of    War — Hostages — Booty 
on  the  Battle-field. 

48.  Deserters  from  the  American  army,  hav 
ing   entered  the   service  of   the  enemy,  suffer 
death  if  they  fall  again  into  the   hands  of  the 
United  States,  whether  by  capture,  or  being  de 
livered  up  to  the  American  army ;  and  if  a  de 
serter  from  the  enemy,  having  taken  service  in 
the  army  of  the  United  States,  is   captured  by 
the  enemy,  and  punished  by  them  with  death  or 
otherwise,  it  is  not  a  breach  against  the  law  and 
usages  of  war,  requiring  redress  or  retaliation. 

49.  A   prisoner   of  war   is    a   public   enemy 
armed  or  attached  to  the  hostile  army  for  active 
aid,  who  has  fallen  into  the  hands  of  the  cap 
tor,  either  fighting  or  wounded,  on  the  field  or 
in  the  hospital,  by  individual  surrender  or  by 
capitulation. 

All  soldiers,  of  whatever  species  of  arms ;  all 
men  who  belong  to  the  rising  en  masse  of  the 
hostile  country ;  all  those  who  are  attached  to 
the  army  for  its  efficiency  and  promote  directly 
the  object  of  the  war,  except  such  as  are  here 
inafter  provided  for;  all  disabled  men  or  offi 
cers  on  the  field  or  elsewhere,  if  captured  ;  all 
enemies  who  have  thrown  away  their  arms  and 
ask  for  quarter,  are  prisoners  of  war,  and  as 
such  exposed  to  the  inconveniences  as  well  as 
entitled  to  the  privileges  of  a  prisoner  of  war. 

50.  Moreover,    citizens    who    accompany    an 
army  for  whatever  purpose,  such  as  sutlers,  ed 
itors,  or  reporters  of  journals,  or  contractors, 
if  captured,  may  be  made  prisoners  of  war,  and 
be  detained  as  such. 

The  monarch  and  members  of  the  hostile 
reigning  family,  male  or  female,  the  chief,  and 
chief  officers  of  the  hostile  government,  its  di 
plomatic  agents,  and  all  persons  who  are  of 
particular  and  singular  use  and  benefit  to  the 
hostile  army  or  its  government,  are,  if  captured 
on  belligerent  ground,  and  if  unprovided  with 
a  safe-conduct  granted  by  tlje  captor's  govern 
ment,  prisoners  of  war. 

51.  If  the  people   of  that   portion    of  an  in 
vaded  country  which  is  not  yet  occupied  by  the 
enemy,  or  of  the  whole  country,  at  the  approach 
of  a  hostile  army,  rise,  under  a  duly  author 
ized  levy,  en  masse  to  resist  the  invader,  they 
are  now  treated  as  public  enemies,  and  if  cap 
tured,  are  prisoners  of  war. 

62.  No  belligerent  has  the  right  to  declare 
that  he  will  treat  every  captured  man  in  arms 
of  a  levy  en  masse  as  a  brigand  or  bandit. 


414 


APPENDIX. 


If,  however,  the  people  of  a  country,  or  ap 
portion  of  the  same,  already  occupied  by  an  ar 
my,  rise  against  it.  they  are  violators  of  the  laws 
of  war,  and  are  not  entitled  to  their  protection. 

53.  The  enemy's    chaplains,   officers  of   the 
medical  staif,  apothecaries,  hospital  nurses  and 
servants,   if   they   fall  into  the  hands   of  the 
American  army,  are  not  prisoners  of  war,  un 
less  the  commander  has  reasons  to  retain  them. 
In  this   latter  case,  or   if,  at  their  own  desire, 
they  are  allowed  to  remain  with  their  captured 
companions,  they  are  treated  as  prisoners  of  war, 
and  may  be  exchanged  if  the  commander  sees  fit. 

54.  A  hostage  is  a  person  accepted  as  a  pledge 
for  the  fulfillment  of  an  agreement  concluded 
between  belligerents  during  the  war,  or  in  con 
sequence  of  a  war.     Hostages  are  rare  in  the 
present  age. 

55.  If  a   hostage  is   accepted,   he   is  treated 
like  a  prisoner  of  war,  according  to  rank  and 
condition,  as  circumstances  may  admit. 

56.  A  prisoner  of  war  is   subject  to  no  pun 
ishment  for  being  a  public   enemy,  nor   is  any 
revenge  wreaked  upon   him  by  the  intentional 
infliction  of  any  suffering,  or  disgrace,  by  cruel 
imprisonment,    want    of    food,    by   mutilation, 
death,  or  any  other  barbarity. 

57.  So   soon   as   a  man  is  armed   by  a  sove 
reign  government,  and  takes  the   soldier's  oath 
of    fidelity,  he   is    a   belligerent ;    his    killing, 
wounding,  or  other  warlike  acts,  are  no  indi 
vidual  crimes   or  offenses.     No  belligerent  has 
a  right  to   declare   that    enemies  of  a   certain 
class,  color  or  condition,  when  properly  organ 
ized  as  soldiers,  will  not  be  treated  by  him  as 
public  enemies. 

58.  The  law  of  nations  knows  of  no  distinc 
tion  of  color,  and   if  an  enemy  of  the   United 
States  should  enslave  and    sell  captured  per 
sons    of    their  army,    it    would    be  a  case   for 
the  severest  retaliation,  if  not  redressed  upon 
complaint. 

The  United  States  can  not  retaliate  by  en 
slavement;  therefore,  death  must  be  the  retal 
iation  for  this  crime  against  the  law  of  nations. 

59.  A  prisoner  of  war  remains   answerable 
for  his  crimes  committed   against  the  captor's 
army  or  people,  committed  before  he  was  cap 
tured,  and  for  which  he  has  not  been  punished 
by  his  own  authorities. 

All  prisoners  of  war  are  liable  to  the  inflic 
tion  of  retaliatory  measures. 

60.  It  is  against  the  usage  of  modern  war  to 
resolve,  in  hatred  and  revenge,  to  give  no  quar 
ter.     No  body  of  troops  has  the  right  to  declare 
that  it  will  not  give,  and  therefore  will  not  ex 
pect,  quarter;  but  a  commander  is  permitted  to 
direct  his  troops   to   give   no   quarter,  in  great 
Btraits,  when  his  .own   salvation   makes  it  im 
possible  to  cumber  himself  with  prisoners. 

61.  Troops  that  give  no  quarter  have  no  right 
to  kill  enemies  already  disabled  on  the  ground, 
or  prisoners  captured  by  other  troops. 

62.  All  troops   of  the  enemy  known  or  dis 
covered  to  give  no  quarter  in  general,  or  to  any 
portion  of  the  army,  receive  none. 

63.  Troops  who  fight  in  the  uniform  of  their 
enemies,  without  any  plain,  striking,  and   uni 
form  mark  of  distinction  of  their  own,  can  ex 
pect  no  quarter. 


64.  If  American  troops  capture  a  train  con 
taining  uniforms   of  the  enemy,  and  the  com- 

jmander  considers  it  advisable  to  distribute 
them  for  use  among  his  men,  some  striking 
mark  or  sign  must  be  adopted  to  distinguish 
the  American  soldier  from  the  enemy. 

65.  The  use  of   the  enemy's  national  stand- 
J  ard,  flag,  or  other  emblem  of  nationality,  for 

the  purpose  of  deceiving  the  enemy  in  battle, 
is  an  act  of  perfidy  by  which  they  lose  all  claim 
to  the  protection  of  the  laws  of  war. 

66.  Quarter  havingbeen  given  to  an  enemy  by 
American  troops,  under  a  misapprehension  of 
his  true  character,  he  may,  nevertheless,  be  or 
dered  to  suffer  death,  if,  within  three  days  af 
ter  the  battle,  it  be  discovered  that  he  belongs 
to  a  corps  which  gives  no  quarter. 

67.  The  law   of  nations  allows    every  sove 
reign  government  to   make  war  upon   another 
sovereign   state,   and,  therefore,   admits  of   no 
rules  or  laws  different  from  those  of  regular 
warfare,  regarding  the  treatment  of  prisoners: 
of  war,  although  they  may  belong  to  the  army 
of   a  government  which  the   captor  may  con 
sider  as  a  wanton  and  unjust  assailant. 

68.  Modern  wars  are   not  internecine  wars, 
in  which  the  killing  of  the  enemy  is  the  object. 
The  destruction  of  the  enemy  in   modern  war, 
and,  indeed,  modern  war   itself,   are  means  to 
obtain  that  object  of  the  belligerent  which  lies 
beyond  the  war. 

Unnecessary  or  revengeful  destruction  of 
life  is  not  lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to 
be  fired  upon,  except  to  drive  them  in,  or  when 
a  positive   order,  special  or  general,  has  been 
issued  to  that  effect. 

70.  The  use  of  poison   in   any  manner,  be  it 
to  poison  wells,  or  food,  or  arms,    is  wholly  ex 
cluded  from  modern  warfare.     He  that  uses  it 
puts   himself  out  of  the   pale   of  the  law  and 
usages  of  war. 

71.  Whoever  intentionally  inflicts  additional 
wounds  on  an  enemy  already  wholly  disabled, 
or  kills  such  an   enemy,  or  who  orders   or  en 
courages  soldiers  to  do  so,  shall  suffer  death,  if 
duly  convicted,  whether  he  belongs  to  the  army 
of  the  United  States,  or  is  an   enemy  captured 
after  having  committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person 
of  a   prisoner,  such    as  watches   or  jewelry,  as 
well  as   extra    clothing,   are    regarded   by  the 
American  army  as  the  private  property  of  the 
prisoner,  and  the  appropriation  of  such  valua 
bles  or  money  is  considered  dishonorable,  and 
is  prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the 
persons  of  prisoners,  or  in  their  possession, 
taey  shall  be  taken  from  them,  and  the  surplus, 
after  providing  for  their  own  support,  appro 
priated  for  the  use  of  the  army,  under  the  di 
rection  of  the  commander,  unless  otherwise  or 
dered  by  the  Government.  Nor  can  prisoners 
claim,  as  private  property,  large  sums  found 
and  captured  in  their  train,  although  they  had 
been  placed  in  the  private  luggage  of  the  pris 
oners. 

73.  All  officers,  when  captured,  must  surren 
der  their  side-arms  to  the  captor.     They  may 
be  restored  to  the  prisoner  in  marked  cases,  by 


APPENDIX. 


415 


the  commander,  to  signalize  admiration  of  his  body  for  the  purpose  of  making  inroads  into 
distinguished  bravery,  or  approbation  of  his  the  territory  occupied  by  the  enemy.  If  cap- 
humane  treatment,  of  'prisoners  before  his  cap- !  tured,  they  are  entitled  to  all  the  privileges  of 


ture.     The  capuuvd  officer  to  whom  they  may 


be  restored  ca 
tivity. 


not  wear  them   during   cap- 


74.  A  prisoner  of  war,  being  a  public   ene- 


the   prisoner  of  war. 

82,  Men,  or  squads  of  men,  who  commit  hos 
tilities,  whether  by  fighting,  or  inroads  for  de 
struction  or  plunder,  or  by  raids  of  any  kind, 


my,  is  a  prisoner  of  the  government,  and  not  without  commission,   without  being  part  and 
of  the   captor.     No   ransom  can  be  paid  by  a  I  portion   of   the    organized   hostile    army,    and 


prisoner  of  war  to  his  individual  captor,  or  to 


alone  releases  captives,  according  to  rules  pre 
scribed  by  itself. 


without  sharing  continuously  in   the  war,  but 


any    officer    in    command.      The    government   who  do   so  with  intermitting  returns  to  their 


homes  and  avocations,  or  with   the  occasional 
assumption  of  the  semblance  of  peaceful  pur- 


75.  Pi-isoners  of  war  are  subject  to  confine-  j  suits,  divesting  themselves  of  the  character  or 
ment  or  imprisonment  such  as  may  be  deemed  j  appearance  of  soldiers — such  men,  or  squads 
necessary  on  account  of  safety,  but  they  are  of  men,  are  not  public  enemies,  and,  therefore, 
to  be  subjected  to  no  other  intentional  suffering  if  captured,  are  not  entitled  to  the  privileges  of 


or  indignity.     The    confinement   and  mode  of 


treating    a    prisoner  may   be    varied    during   rily  as  highway  robbers  or  pirates. 


his   captivity,    according    to    the   demands    of 
safety. 

76.  Prisoners  of  war  shall  be  fed  upon  plain 
and  wholesome  food,  whenever  practicable,  and 
treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit 
of  the  captor's  government,  according  to  their 
rank  and  condition. 

77.  A  prisoner  of  war  who  escapes  may  be 
shot,   or   otherwise   killed    in    his   flight;    but 
neither  death  nor  any  other  punishment  shall  be 
inflicted   upon   him   simply  for  his   attempt  to 
escape,    which  the   law    of  war  does   not  con 
sider    a    crime.      Stricter  means   of    security 
shall  be  used  after  an  unsuccessful  attempt  at 
escape. 

If,  however,  a  conspiracy  is  discovered,  the 
purpose  of  which  is  a  united,  or  general  escape, 
the  conspirators  may  be  rigorously  punished, 
even  with  death;  and  capital  punishment  may 
also  be  inflicted  upon  prisoners  of  war  discov 
ered  to  have  plotted  rebellion  against  the  au 
thorities  of  the  captors,  whether  in  union  with 
fellow-prisoners  or  other  persons. 

78.  If    prisoners   of   war,    having   given  no 
pledge  nor  made  any  promise  on   their  honor, 
forcibly  or  otherwise  escape,  and  are  captured 
again  in  battle,  after  having  rejoined  their  own 
army,  they  shall  not  be  punished  for  their  es 
cape,  but  shall  be  treated  as  simple  prisoners 
of   war,    although   they   will  be   subjected    to 
stricter  confinement. 

79.  Every  captured  wounded  enemy  shall  be 
medically  treated,  according  to  the  ability  of 
the  medical  staff. 

80.  Honorable  men,  when  captured,  will  ab 
stain   from  giving  to  the   enemy  information 
concerning  their  own   army,  and   the  modern 
law  of  war  permits   no  longer  the  use  of  any 
violence  against  prisoners,  in  order  to  extort 
the  desired  information,  or  to  punish  them  for 
having  given  false  information. 

SECTION  IV. 

Partisans — Armed  enemies    not 


prisoners  of  war,  but  shall  be  treated  summa- 


83.  Scouts,  or  single  soldiers,  if  disguised  in 
the  dress  of  the  country,  or  in   the  uniform  of 
the  army  hostile  to  their  own,  employed  in  ob 
taining  information,  if  found   within  or  lurk 
ing  about  the  lines  of  the  captor,  are  treated  as 
spies,  and  suffer  death. 

84.  Armed   prowlers,    by    whatever    names 
they  may  be  called,  or  persons  of  the  enemy's 
territory,  who  steal  within  the  lines  of  the  hos 
tile  army,  for  the  purpose  of  robbing,  killing, 
or  of  destroying  bridges,  I'oads,  or  canals,  or  of 
robbing  or  destroying  the  mail,  or  of  cutting 
the  telegraph  wires,  are  not  entitled  to  the  priv 
ileges  of  the  prisoner  of  Avar. 

85.  War  rebels   are  persons  within  an  occu 
pied  territory  who  rise  in  arms  against  the  oc 
cupying  or  conquering   army,  or  against  the 
authorities  established  by   the   same.     If  cap 
tured,  they  may  suffer  death,  whether  they  rise 
singly,  in   small  or  large  bands,  and  whether 
called  upon  to  do  so  by  their  own,  but  expelled, 
government  or  not.     They  are  not  prisoners  of 
war ;  nor  are  they,  if  discovered  and  secured 
before  their  conspiracy  has  matured  to  an  actu 
al  rising,  or  to  armed  violence. 

.      SECTION  V. 

Safe-conduct  —  Spies  —  War  traitors —  Captured 
messengers — Abuse  of  the  flag  of  truce. 

86.  All   intercourse  between   the    territories 
occupied   by    belligerent   armies,    whether   by 
traffic,  by  letter,  by  travel,  or  in  any  other  way, 
ceases.     This  is  the  general  rule,  to  be  observed 
without  special  proclamation. 

Exceptions  to  this  rule,  whether  by  safe-con 
duct,  by  permission  to  trade  on  a  small  or  large 
scale,  or  by  exchanging  mails,  or  by  travel  from 
one  territory  into  the  other,  can  take  place  on 
ly  according  to  agreement  approved  by  the  gov 
ernment,  or  by  the  highest  military  authority. 


Contraventions  of  this  rule  are  highly  pun 
ishable. 

87.  Ambassadors,   and  all   other   diplomatic 
,  ,  .,     agents  of  neutral  powers,  accredited  to  the  en- 

«,*™-         ,.„„ .   *,,e,,..c.    .^belonging  to    the  j  receive   safe-conducts    through  the 

hostile  army  —  scouts — Armed  prowlers —  War\,       •.     •  -    i  ••      .\.     *    -,,-  , 

refoly  I  territories  occupied  by  the  belligerents,  unless 

|  there  are  military  reasons  to  the  contrary,  and 

81.  Partisans  are  soldiers  armed  and  wear-  j  unless  they  may  reach  the  place  of  their  des- 
ing  the  uniform  of  their  army,  but  belonging  |  tination  conveniently  by  another  route.  It 
to  a  corps  which  acts  detached  from  the  main  i  implies  no  international  affront  if  the  safe- 


416 


APPENDIX. 


it  to 


to 


to 


conduct  is  declined.  Such  passes  are  usually 
given  by  the  supreme  authority  of  the  State, 
and  not  by  subordinate  officers. 

88.  A  spy  is  a   person  who  secretly,  in  dis 
guise  or  under  false   pretense,  seeks    informa 
tion  with  the  intention  of  communicating 

the  enemy. 

The  spy  is  punishable  with  death  by  hanging 
by  the  neck,  whether  or  not  he  succeed  in  ob 
taining  the  information  or  in  conveying  it 
the  enemy. 

89.  If  a  citizen  of  the  United  States   obtains 
information   in   a   legitimate  manner,  and  be 
trays  it  to  the  enemy,  be  he  a   military  or  civil 
officer,  or  a  private  citizen,  he  shall  suffer  death. 

90.  A  traitor  under  the  law  of  war,  or  a  war- 
traitor,  is  a  person  in  a  place  or  district  under 
martial  la\v  Avho,  unauthorized  by  the  military 
commander,  gives  information  of  any  kind 
the  enemy,  or  holds  intercourse  with  him. 

91.  The  Avar  traitor  is   always  severely  pun 
ished.     If  his  offense  consists  in  betraying  to 
the  enemy  anything  concerning  the  condition, 
safety,  operations  or  plans  of  the   troops  hold 
ing  or  occupying  the  place  or  district,  his  pun 
ishment  is  death. 

92.  If  the  citizen  or  subject  of  a   country  or 
place  invaded  or  conquered  gives  information 
to  his  own  government,  from  which   he  is  sep 
arated  by  the   hostile  army,  or  to  the  army  of 
his  government,  he  is  a  war  traitor,  and  death 
is  the  penalty  of  his  offense. 

93.  All  armies  in  the  field  stand   in   need  of 
guides,  and  impress  them   if  they  can    not  ob 
tain  them  otherwise. 

94.  No  person  having  been  forced  by  the  en 
emy  to  serve  as  a  guide,  is  punishable  for  hav 
ing  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  dis 
trict  voluntarily  serves  as  a  guide  to  the  ene 
my,    or   offers    to   do   so,  he  is   deemed  a  war 
traitor,  and  shall  suffer  death. 

96.  A  citizen   serving  voluntarily  as  a  guide 
against  his  own  country  commits  treason,  and 
will  be  dealt  with  according  to  the  laAV  of  his 
country. 

97.  Guides,    Avhen   it   is   clearly  proved  that 
they  have  misled  intentionally,  may  be  put  to 
death. 

98.  All  unauthorized    or   secret   communica 
tion  Avith  the  enemy  is  considered  treasonable 
by  the  law  of  Avar. 

Foreign  residents  in  an  invaded  or  occupied 
territory,  or  foreign  visitors  in  the  same,  can 
claim  no  immunity  from  this  law.  They  may 
communicate  Avith  foreign  parts,  or  Avith  the 
inhabitants  of  the  hostile  country,  so  far  as 
the  military  authority  permits,  but  no  further. 
Instant  expulsion  from  the  occupied  territory 
would  be  the  very  least  punishment  for  the  in 
fraction  of  this  rule. 

99.  A  messenger  carrying  written  dispatches 
or  verbal    messages    from   one    portion    of  the 
army,  or  from  a  besieged  place,  to  another  por- 


his  capture  must  determine  the  disposition  that 
shall  be  made  of  him. 

100.  A  messenger  or  agent  who  attempts  to 
steal  through  the  territory  occupied  by  the  ene 
my,  to  further  in  any  manner  the  interests  of 
the  enemy,  if  captured,  is    not   entitled    to    the 
privileges  of  the  prisoner  of  war,  and  may  be  dealt 
with  according  to  the  circumstances  of  the  case. 

101.  While  deception  in  Avar  is  admitted  as 
a  just  and  necessary  means  of  hostility,  and  is 
consistent  with  honorable  warfare,  the  common 
law  of  war  allows  even  capital  punishment  for 
clandestine  or  treacherous   attempts   to  injure 
an  enemy,  because  they  are  so  dangerous,  and 
it  is  so  difficult  to  guard  against  them. 

102.  The  law  of  war,  like  the   criminal  war 
regarding  other  offenses,  makes   no  difference 
on  account  of  the  difference  of  sexes,  concern 
ing  the  spy,  the  war  traitor,  or  the  war  rebel. 

103.  Spies,  war  traitors   and   war  rebels  arc 
not  exchanged  according  to  the  common  law  of 
war.     The  exchange  of  such  persons  would  re 
quire  a  special   cartel,   authorized  by  the  gov 
ernment,  or,  at  a  great  distance  from  it,  by  the 
chief  commander  of  the  army  in  the  field. 

104.  A  successful   spy  or   war  traitor,  safely 
returned  to  his  own  army,  and  afterward  cap 
tured   as   an    enemy,  is   not  subject  to  punish 
ment,  for  his  acts   as   a   spy  or  war  traitor,  but 
he  may  be  held  in  closer  custody  as   a  person 
individually  dangerous. 

SECTION  VI. 

Exchange  of  prisoners — Flags  of  truce — Flags  of 
protection. 

105.  Exchanges   of   prisoners  take  place  — 
number  for  number — rank  for  rank — wounded 
for  wounded — with  added  condition  for  added 
condition — such,  for  instance  as  not  to   serve 
for  a  certain  period. 

106.  In   exchanging  prisoners   of  war,  such 
numbers   of   persons   of  inferior  rank   may  be 
substituted  as  an  equivalent  for  one  of  superi 
or    rank    as    may   be    agreed   upon    by   cartel, 
which  requires  the  sanction  of  the  government, 
or  of  the  commander  of  the  army  in  the  field. 

107.  A   prisoner  of  Avar  is   in   honor  bound 
truly  to  state  to  the  captor  his  rank  ;  and  he  is 
not  to  assume  a  lower  rank  than  belongs  to  him, 
in  order  to  cause  a  more  advantageous  exchange; 
nor  a  higher  rank,  for  the  purpose  of  obtaining 
better  treatment. 

Offenses  to  the  contrary  have  been  justly 
punished  by  the  commanders  of  released  pris 
oners,  and  may  be  good  cause  for  refusing  to 
release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  Avar 
remaining  after  an  ..exchange   has   taken   place 
is  sometimes  released  either  for  the  payment  of 
a  stipulated  sum  of  money,  or,  in  urgent  cases, 
of  provision,  clothing,  or  other  necessaries. 

Such    arrangement,    hoAvever,    requires    the 

tion  of  the  same  army,  or  its  government,  if  'sanction  of  the  highest  authority, 
armed,  and  in  the  uniform  of  his  army,  and  if  !  109.  The  exchange  of  prisoners  of  war  is  an 
captured,  Avhile  doing  so,  in  the  territory  oc-  act  of  convenience  to  both  belligerents.  If  no 
cupied  by  the  enemy,  is  treated  by  the  cap-  general  cartel  has  been  concluded,  it  can  not  be 
tor  as  a  prisoner  of  Avar.  If  not  in  uniform,  I  demanded  by  either  of  them.  No  belligerent  is 
nor  a  soldier,  the  circumstances  connected  Avithj  obliged  to  exchange  prisoners  of  war. 


APPENDIX. 


417 


A  cartel  is  voidable  so  soon  as  either  party 
has  violated  it. 

110.  No  exchange  of  prisoners  shall  be  made 
except  after  complete  capture,  and  after  an  ac 
curate  account  of  them,  and  a  list  of  the  cap 
tured  officers  has  been  taken. 

111.  The  bearer  of  a  flag  of  truce  can  not  in 
sist  on  being  admitted.     He  must  always   be 
admitted  with  great  caution.     Unnecessary  fre 
quency  is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  him 
self  during  an  engagement,  he  can  be  admitted 
as  a  very  rare  exception  only.     It  is  no  breach 
of  good  faith  to  retain  such  a  flag  of  truce,  if 
admitted  during  the  engagement.     Firing  is  not 
required  to  cease  on  the  appearance  of  a  flag  of 
truce  in  battle. 

113.  If  the  bearer  of  a  flag  of  truce,  present- 
iDg  himself  during  an  engagement,  is  killed  or 
wounded,  it  furnishes  no  ground  of  complaint 
whatever. 

114.  If  it  be  discovered,  and  fairly  proved, 
that  a  flag  of  truce  has  been  abused  for  surrep 
titiously    obtaining    military    knowledge,  the 
bearer  of  the  flag  thus  abusing  his  sacred  char 
acter  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce, 
and  so  necessary  is  its  sacredness,  that  while 
its  abuse  is  an  especially  heinous  offense,  great 
caution  is  requisite,  on  the  other  hand,  in  con 
victing  the  bearer  of  a  flag  of  truce  as  a  spy. 

115.  It  is  customary  to  designate  by  certain 
flags  (usually  yellow),  the  hospitals  in  places 
which  are  shelled,  so  that  the  besieging  enemy 
may  avoid  firing  on  them.     The  same  has  been 
done   in  battles,  when  hospitals   are    situated 
within  the  field  of  the  engagement. 

116.  Honorable  belligerents  often  request  that 
•  he  hospitals  within  the  territory  of  the  enemy 
may  be  designated,  so  that  they  may  be  spared. 

An  honorable  belligerent  allows  himself  to 
be  guided  by  flags  or  signals  of  protection  as 
much  as  the  contingencies  and  the  necessities 
of  the  fight  will  permit. 

117.  It  is  justly  considered  an  act  of  bad  faith, 
of  infamy  or  fiendishness,  to  deceive  the  enemy 
by  flags  of  protection.     Such  act  of  bad  faith  may 
be  good  cause  for  refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes 
requested  the  besieged  to  designate  the  build 
ings  containing  collections  of  works  of  art,  sci 
entific  museums,  astronomical  observatories  or 
precious  libraries,  so  that  their  destruction  may 
be  avoided  as  much  as  possible. 

SECTION  VH. 
The  Parole. 

119.  Prisoners  of  war  may  be  released  from 
captivity  by  exchange,  and  under  certain  cir 
cumstances,  also  by  parole. 

120.  The  term  parole  designates  the  pledge 
of  individual  good  faith  and  honor  to  do,  or  to 
omit  doing,  certain  acts  after  he  who  gives  his 
parole  shall  have  been  dismissed,  wholly  or  par 
tially,  from  the  power  of  the  captor. 

121.  The  pledge  of  the  parole  is  always  an 
individual,  but  not  a  private,  act. 

122.  The  parole  applies  chiefly  to  prisoners  of 
war  whom  the  captor  allows  to  return  to  their 

27 


country,  or  to  live  in  greater  freedom  within  the 
captors  country  or  territory,  ou  conditions 
stated  in  the  parole. 

123.  Release  of  prisoners  of  war  by  exchange 
is  the  general   rule ;  release  by  parole  is  the 
exception. 

124.  Breaking  the  parole   is   punished  with 
death  when  the  person  breaking  the  parole  is 
captured  again. 

Accurate  lists,  therefore,  of  the  paroled  per 
sons  must  be  kept  by  the  belligerents. 

125.  When  paroles  are  given   and  received, 
there  must  be  an  exchange  of  two  written  docu 
ments,  in  which  the  name  and  rank  of  the  pa 
roled  individuals  are  accurately  and  truthfully 
stated.  .    - 

126.  Commissioned  officers  only  are  allowed 
to  give  their  parole,  and  they  can  give  it  only 
with  the  permission  of  their  superior,  as  long  as 
a  superior  in  rank  is  within  reach. 

127.  No  non-commissioned  officer  or  private 
can  give  his  parole  except  through  an  officer. 
Individual  paroles  not  given  through  an  officer 
are  not  only  void,  but  subject  the  individuals 
giving  them  to  the  punishment  of  death  as  desert 
ers.  The  only  admissible  exception  is  where  indi 
viduals  properly  separated  from  their  commands, 
have  suffered  long  confinement  without  the  pos 
sibility  of  being  paroled  through  an  officer. 

128.  No  paroling  on  the  battle-field  ;  no  parol 
ing  of  entire  bodies  of  troops  after  a  battle,  and 
no  dismissal  of  large  numbers  of  prisoners,  with 
a  general  declaration  that  they  are  paroled,  is 
permitted  or  of  any  value. 

129.  In   capitulations   for  the   surrender  of 
strong  places  or  fortified  camps,  the  command 
ing  officer,  in  cases  of  urgent  necessity,  may 
agree  that  the  troops  under  his  command  shall 
not  fight   again   during    the   war,  unjess   ex 
changed. 

130.  The  usual  pledge  given  in  the  parole  is 
not   to  serve  during  the  existing  war,  unless 
exchanged. 

This  pledge  refers  only  to  the  active  service  in 
the  field,  against  the  paroling  belligerent  or  his 
allies  actively  engaged  in  the  same  war.  These 
cases  of  breaking  the  parole  are  patent,  acts,  and 
can  be  visited  with  the  punishment  of  death ;  but 
the  pledge  does  not  refer  to  internal  service, 
such  as  recruiting  or  drilling  the  recruits,  for 
tifying  places  not  besieged,  quelling  civil  com 
motions,  fighting  against  belligerents  uncon 
nected  with  the  paroling  belligerents,  or  to  civil 
or  diplomatic  service  for  which  the  paroled 
officer  may  be  employed. 

131.  If  the  Government  does  not  approve  of 
the  parole,  the  paroled  officer  must  return  into 
captivity,  and  should  the  enemy  refuse  to  re 
ceive  him,  he  is  free  of  his  parole. 

132.  A  belligerent  government  may  declare, 
by  a  general  order,  whether  it  will  allow  parol 
ing,  and  on  what   conditions  it  will   allow  it. 
Such  order  is  communicated  to  the  enemy. 

133.  No  prisoner  of  war  can  be  forced  by  the 
hostile  government  to  parole  himself,  and  no 
government  is  obliged  to  parole  prisoners  of  war, 
or  to  parole  all  captured  officers,  if  it  paroles 
any.     As  the  pledging  of  the  parole  is  an  indi 
vidual  act,  so  is  paroling,  on  the  other  hand,  an 
act  of  choice  on  the  part  of  the  belligerent 


418 


APPENDIX. 


134.  The  commander  of  an  occupying  army 
may  require  of  the  civil  officers  of  the  enemy, 
and  of  its  citizens,  any  pledge  he  may  consider 
necessary  for  the  safety  or  security  of  his  army, 
and  upon  their  failure  to  give  it,  he  may  arrest, 
confine  or  detain  them. 

SECTION  VIII. 

Armistice —  Capitulation. 

135.  An  armistice  is  the  cessation  of  active 
hostilities  for  a  period  agi-eed  upon  between  bel 
ligerents.     It  must  be  agreed  upon  'n  writing, 
and  duly  ratified  by  the  highest  authorities  of 
the  contending  parties. 

136.  If  an  armistice  be  declared,  without  con 
ditions,  it  extends  no  further  than  to  require  a 
total  cessation  of  hostilities,  along  the  front  of 
both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be 
clearly  expressed,  arid  must  be  rigidly  adhered 
to  by  both  parties.  If  either  party  violates  any 
express  condition,  the  armistice  may  be  declared 
null  and  void  by  the  other. 

137.  An  armistice  may  be  general,  and  valid 
for  all  points  and  lines  of  the  belligerents ;  or 
special,  that   is,  referring  to  certain   troops  or 
certain  localities  only. 

An  armistice  may  be  concluded  for  a  definite 
time,  or  for  an  indefinite  time,  during  which 
either  belligerent  may  resume  hostilities  on  giv 
ing  the  notice  agreed  upon  to  the  other. 

138.  The  motives  which  induce  the  one  or  the 
other   belligerent    to    conclude    an   armistice, 
whether  it  be  expected  to  be  preliminary  to  a 
treaty  of  peace,  or  to  prepare  during  the  armis 
tice  for  a  more  vigorous  prosecution  of  the  war, 
does  in  no  way  affect  the  character  of  the  armis 
tice  itself. 

139.  An   armistice  is  binding  upon  the  bel 
ligerents  from  the  day  of  the  agreed  commence 
ment  ;  but  the  officers  of  the  armies  are  respon 
sible  from  the  day  only  when  they  receive  official 
information  of  its  existence. 

140.  Commanding  officers  have  the  right  to 
conclude  armistices  binding  on  the  district  over 
which  their  command  extends,  but  such  armis 
tice  is  subject  to  the  ratification  of  the  superior 
authority,  and  ceases    so   soon   as  it  is  made 
known  to  the  enemy  that  the  armistice  is  not 
ratified,  even  if  a  certain  time  for  the  elapsing 
between  giving  notice  of  cessation  and  the  re 
sumption  of  hostilities  should  have  been  stipu 
lated  for. 

141.  It  is  incumbent  upon   the  contracting 
parties  of  an  armistice  to  stipulate  what  inter 
course  of  persons  or  traffic  between  the  inhabit 
ants  of  the  territories  occupied  by  the  hostile 
armies  shall  be  allowed,  if  any. 

If  nothing  is  stipulated,  the  intercourse  re 
mains  suspended,  as  during  actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  tem 
porary  peace ;  it  is  only  the  suspension  of  mili 
tary  operations  to  the  extent  agreed  upon  by 
the  parties. 

143.  When  an  armistice  is  concluded  between 
a  fortified  place  and  the  army  besieging  it,  it  is 
agreed  by  all  the  authorities  on  this  subject  that 
the  besieger  must  cease  all  extension,  perfection 


or  advance  of  his  attacking  works  as  much  so 
as  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among 
martial  jurists,  whether  the  besieged  have  the 
right  to  repair  breaches  or  to  erect  new  works 
of  defense  within  the  place  during  an  armistice, 
this  point  should  be  determined  by  express 
agreement  between  the  parties. 

144.  So  soon  as  a  capitulation  is  signed,  the 
capitulator  has  no  right  to  demolish,  destroy  or 
injure  the  works,  arms,  stoi-es  or  ammunition  in 
his  possession,  during  the  time  which  elapses 
between   the  signing  and  the  execution  of  the 
capitulation,  unless  otherwise  stipulated  in  the 
same. 

145.  When  an  armistice  is  clearly  broken  by 
one  of  the  parties,  the  other  party  is  released 
from  all  obligation  to  observe  it. 

146.  Prisoners,  taken  in  the  act  of  breaking 
an   armistice,  must  be  treated  as  prisoners  of 
war,  the  officer  alone  being  responsible  who  gives 
the  order  for  such  a  violation  of  an  armistice. 
The   highest   authority   of  the  belligerent   ag 
grieved  may  demand  redress  for  the  infraction 
of  an  armistice. 

147.  Belligerents   sometimes  conclude  an  ar 
mistice  while  their  plenipotentiaries  are  met  to 
discuss  the  conditions  of  a  treaty  of  peace ;  but, 
plenipotentiaries  may  meet  without  a  prelimi 
nary   armistice ;  in   the  latter  case  the  war  is 
carried  on  without  any  abatement. 

SECTION  IX. 

Assassination. 

148.  The  law  of  war  does  not  allow  proclaim 
ing  either  an  individual  belonging  to  the  hostile 
army,  or  a  citizen,  or  a  subject  of  the  hostile 
government,  an  outlaw,  who  may  be  slain  with 
out  trial  by  any  captor,  any  more  than  the  mod 
ern  law  of  peace  allows  such  international  out 
lawry  ;  on  the  contrary,  it  abhors  such  outrage. 
The  sternest  retaliation  should  follow  the  mur 
der  committed  in   consequence  of  such  procla 
mation,  made  by  whatever  authority.     Civilized 
nations  look  with  horror  upon  offers  of  rewards 
for  the   assassination  of  enemies,  as   relapses 
into  barbarism. 

SECTION  X. 
Insurrection —  Civil   War — Rebellion. 

149.  Insurrection  is  the  rising  of  people  in 
arms  against  their  government,  or  a  portion  of 
it,  or  against  one  or  more  of  its  laws,  or  against 
an  officer  or  officers  of  the  government.     It  may 
be  confined  to  mere  armed  resistance,  or  it  may 
have  greater  ends  in  view. 

150.  Civil  war  is  war  between  two  or  more 
portions  of  a  country  or  State,  each  contending 
for  the  mastery  of  the  whole,  and  each  claiming 
to  be  the  legitimate  government.     The  term  is 
also  sometimes  applied  to  war  of  rebellion,  when 
the  rebellious  provinces  or  portions  of  the  State 
are  contiguous  to  those  containing  the  seat  of 
government. 

151.  The  term  rebellion  is  applied  to  an  insur 
rection  of  large  extent,  and  is  usually  a  war 


APPENDIX. 


419 


between  the  legitimate  government  of  a  country 
and  portions  or  provinces  of  the  same  who  seek 
to  throw  off  their  allegiance  to  it,  and  set  up  a 
government  of  their  own. 

152.  When  humanity  induces  the  adoption  of 
the  rules  of  regular  war  toward  rebels,  whether 
the  adoption  is  partial  or  entire,  it  does  in   no 
way  whatever  imply  a  partial  or  complete  ac 
knowledgment  of  their  government,  if  they  have 
set    up  one,  or  of  them,  as  an  independent  or 
sovereign  power.     Neutrals  have    no   right  to 
make  the  adoption  of  the  rules  of  war  by  the 
assailed  government  toward  rebels  the  ground 
of  their  own  acknowledgment  of  the  revolted 
people  as  an  independent  power. 

153.  Treating  captured  rebels  as  prisoners  of 
war,  exchanging   them,  concluding  of  cartels, 
capitulations  or  other  warlike  agreements  with 
them ;  addressing  officers  of  a  rebel   army  by 
the  rank  they  may  have  in  the  same;  accepting 
flags  of  truce,  or,  on  the  other  hand,  proclaim 
ing  martial  law  in  their  territory,  or  levying 
war  taxes  or  forced  loans,  or  doing  any  other 
act   sanctioned  or   demanded   by  the  law  and 
usages  of  public  war  between  sovereign  bellig 
erents,  neither  proves   nor   establishes  an  ac 
knowledgment  of  the  rebellious  people,  or  of  the 
government  which  they  may  have  erected,  as  a 
public  or  sovereign  power.     Nor  does  the  adop 
tion  of  the  rules  of  war  toward  rebels  imply  an 
engagement  with   them  extending  beyond  the 
limits  of  these  rules.     It  is  victory  in   the  field 
that  ends  the  strife  and  settles   the  future  rela 
tions  between  the  contending  parties. 

154.  Treating,  in  the  field,  the  rebellious  ene 
my  according  to  the  laws  and  usages  of  war  has 
never  prevented  the  legitimate  government  from 
trying  the  leaders  of  the  rebellion  or  chief  rebels 
for  high  treason,  and  from  treating  them  accord 
ingly,  unless   they  are    included  in   a  general 
amnesty. 

155.  All  enemies  in  regular  war  are  divided 
into  two   general  classes;  that   is  to  say,  into 
combatants   and  non-combatants,   or  unarmed 
citizens  of  the  hostile  government. 

The  military  commander  of  the  legitimate 
government,  in  a  war  of  rebellion,  distinguishes 
between  the  loyal  citizen  in  the  revolted  portion 
of  the  country  and  the  disloyal  citizen.  The 
disloyal  citizens  may  further  be  classified  into 
those  citizens  known  to  sympathize  with  the 
rebellion,  without  positively  aiding  it,  and  those 
who,  without  taking  up  arms,  give  positive  aid 
and  comfort  to  the  rebellious  enemy,  without 
being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency 
require   that  the    military  commander  protect 
the  manifestly  loyal  citizens,  in  revolted  terri 
tories,  against  the  hardships  of  the  war  as  much 
as  the  common  misfortune  of  all  war  admits. 

The  commander  will  throw  the  burden  of  the 
war,  as  much  as  lies  within  his  power,  on  the 
disloyal  citizens  of  the  revolted  portion  or  prov 
ince,  subjecting  them  to  a  stricter  police  than 
the  non-combatant  enemies  have  to  suffer  in 
i-egular  war;  and  if  he  deems  it  appropriate,  or 
if  his  government  demands  of  him  that  every 
citizen  shall,  by  an  oath  of  allegiance,  or  by 
some  other  manifest  act,  declare  his  fidelity  to 
the  legitimate  government,  he  may  expel,  trans 


fer,  imprison  or  fine  the  revolted  citizens  who 
refuse  to  pledge  themselves  anew  as  citizens 
obedient  to  the  law,  and  loyal  to  the  government. 

Whether  it  is  expedient  to  do  so,  and  whether 
reliance  can  be  placed  upon  such  oaths,  the 
commander  or  his  government  have  the  right 
to  decide. 

157.  Armed  or  unarmed  resistance  by  citizens 
of  the  United  States  against  the  lawful  move 
ments  of  their  troops  is  levying  war  against  the 
United  States,  and  is  therefore  treason. 


GENERAL  ORDERS,  NO.  141. 

WAR  DEPARTMENT, 
ADJUTANT  GENERAL'S  OFFICE, 
Washington,  September  25,  1862. 
The  following  Proclamation  by  the  President 
is  published   for  the  information  and   govern 
ment  of  the  Army  and  all  concerned : 

"BY   THE    PRESIDENT    OF   THE   UNITED    STATES    OF 
AMERICA. 

"A  PROCLAMATION. 

"WHEREAS,  It  has  become  necessary  to  call 
into  service  not  only  volunteers,  but  also  por 
tions  of  the  militia  of  the  States  by  draft,  in 
order  to  suppress  the  insurrection  existing  in 
the  United  States,  and  disloyal  persons  are  not 
adequately  restrained  by  the  ordinary  processes 
of  law  from  hindering  this  measure  and  from 
giving  aid  and  comfort  in  various  ways  to  the 
insurrection.  Now,  therefore,  be  it  ordered  : 

"  First.  That  during  the  existing  insurrection, 
and  as  a  necessary  measure  for  suppressing  the 
same,  all  rebels  and  insurgents,  their  aiders 
and  abettors,  within  the  United  States,  and  all 
persons  discouraging  volunteer  enlistments,  re 
sisting  militia  drafts,  or  guilty  of  any  disloyal 
practice,  affording  aid  and  comfort  to  rebels 
against  the  authority  of  the  United  States,  shall 
be  subject  to  martial  law,  and  liable  to  trial 
and  punishment  by  courts-martial  or  military 
commission. 

"Second.  That  the  writ  of  habeas  corpus  is 
suspended  in  respect  to  all  persons  arrested,  or 
who  ai-e  now,  or  hereafter  during  the  rebellion 
shall  be,  imprisoned  in  any  fort,  camp,  arsenal, 
military  pi'ison  or  other  place  of  confinement  by 
any  military  authority,  or  by  the  sentence  of 
any  court-martial  or  military  commission. 

"In  witness  whereof,  I  have  hereunto  set  my 
hand,  and  caused  the  seal  of  the  United  States 
to  be  affixed. 

"Done  at  the  city  of  Washington,  this  twenty- 
fourth  day  of  September,  in  the  year  of 
[L.  s.]  our  Lord  one  thousand  eight  hundred  and 
sixty-two,  and  of  the  Independence  of  the 
United  States  the  eighty-seventh. 

"ABRAHAM  LINCOLN. 
"By  the  President: 

"WILLIAM  H.  SEWARD,  Secretary  of  State. 

"  By  order  of  the  Secretary  of  War. 

"  L.  THOMAS,  Adjutant  General 

"  OFFICIAL." 


OF 


LOUIS  J.  WEICHMAM  AND  CAPT.  G.  W.  DUTTON. 


COL.  H.  L.  BURNETT,  Judge  Advocate,  Cincinnati, 

Ohio : 

Colonel — I  stated  before  the  Commission,  at 
Washington,  that  I  commenced  to  board  with 
Mrs.  Surratt  in  November,  1864.  As  a  general 
thing,  I  remained  at  home  during  the  evenings, 
and,  consequently,  I  heard  many  things  which 
were  then  intended  to  blind  me,  but  which  now 
are  as  clear  as  daylight.  The  following  facts, 
which  have  come  to  my  recollection  since  the 
rendition  of  my  testimony,  maybe  of  interest: 

AFFIDAVIT  OF  Louis  J.  WEICHMANN. 

I  once  asked  Mrs.  Surratt  what  her  son  John 
had  to  do  with  Dr.  Mudd's  farm ;  why  he  made 
himself  an  agent  for  Booth  (she  herself  had 
told  me  that  Booth  desired  to  purchase  Mudd's 
farm).  Her  reply  was,  that  "Dr.  Mudd  and 
the  people  of  Charles  county  had  got  tired  of 
Booth,  and  that  they  had  pushed  him  on  John.'' 
Before  the  fourth  of  March,  she  was  in  the 
habit  of  remarking  that  "  something  was  going 
to  happen  to  old  Abe  which  would  prevent  him 
from  taking  his  seat ;  that  Gen.  Lee  was  going 
to  execute  a  movement  which  would  startle  the 
whole  world."  What  that  movement  was  she 
never  said. 

A  few  days  after,  I  asked  her  why  John 
brought  such  men  as  Herold  and  Atzerodt  to 
the  house,  and  associated  with  them?  "0, 
John  wishes  to  make  use  of  them  for  his  dirty 
work,1'  was  her  reply.  On  my  desiring  to  know 
what  the  dirty  work  was,  she  answered  that 
"John  wanted  them  to  clean  his  horses."  He 
had  two  at  that  time.  And  once,  when  she  sent 
me  to  Brooks,  the  stabler,  to  inquire  about  her 
son,  she  laughed,  and  remarked  that  "Brooks 
considered  John  Surratt,  and  Booth,  and  Her 
old,  and  Atzerodt  a  party  of  young  gamblers 
and  sports,  and  that  she  wanted  him  to  think 
so."  Brooks  has  told  me  since  the  trial  that 
such  was  actually  the  case,  and  that  at  one  time 
he  saw  John  H.  Surratt  with  three  one-hundred 
:lollar  notes  in  his  possession. 

When  Richmond  fell  and  Lee's  army  surren 
dered,  when  Washington  was  illuminated,  Mrs. 
Surratt  closed  her  home  and  wept.  Her  house 
was  gloomy  and  cheerless.  To  use  her  own  ex 
pression,  it  was  "indicative  of  her  feelings." 

On  Good  Friday  I  drove  her  into  the  country, 
ignorant  of  her  purpose* and  intentions.  We 
started  at  about  half-past  two  o'clock  in  the  af 
ternoon.  Before  leaving,  she  had  an  interview 
420 


with  John  Wilkes  Booth  in  the  parlor.  On  the 
way  down  she  was  very  lively  and  cheerful, 
taking  the  reins  into  her  own  hands  several 
times,  and  urging  011  the  steed.  We  halted 
once,  and  that  was  about  three  miles  from 
Washington,  when,  observing  that  there  were 
pickets  along  the  road,  she  hailed  an  old  farmer, 
and  wanted  to  know  if  they  would  remain  there 
all  night.  On  being  told  that  they  were  with 
drawn  at  about  eight  o'clock  in  the  evening,  she 
said  she  "  was  glad  to  know  it."  On  the  re 
turn,  I  chanced  to  make  some  remark  about 
Booth,  stating  that  he  appeared  to  be  without 
employment,  and  asking  her  when  he  was  go 
ing  to  act  again.  "Booth  is  done  acting,"  she 
said,  "and  is  going  to  New  York  very  soon, 
never  to  return.'1  Then  turning  round,  she  re 
marked:  "Yes,  and  Booth  is  crazy  on  one  sub 
ject,  and  I  am  going  to  give  him  a  good  scold 
ing  the  next  time  I  see  him."  What  that  "one 
subject"  was,  Mrs.  Surratt  never  mentioned 
to  me.  She  was  very  anxious  to  be  at  home  at 
nine  o'clock,  saying  that  she  had  made  an  en 
gagement  with  some  gentleman  who  was  to 
meet  her  at  that  hour.  I  asked  her  if  it  was 
Booth.  She  answered  neither  yes  nor  no. 

When  about  a  mile  from  the  city,  and  having 
from  the  top  of  a  hill  caught  a  view  of  Wash 
ington  swimming  in  a  flood  of  light,  raising 
her  hands,  she  said,  "I  am  afraid  all  this  re 
joicing  will  be  turned  into  mourning,  and  all 
this  glory  into  sadness."  I  asked  her  what  she 
meant.  She  replied  that  after  sunshine  there 
was  always  a  storm,  and  that  the  people  were 
too  proud  arid  licentious,  and  that  God  would 
punish  them. 

The  gentleman  whom  she  expected  at  nine 
o'clock  on  her  return,  called.  It  was,  as  I  af 
terward  ascertained,  Booth's  last  visit  to  Mrs. 
Surratt,  and  the  third  one  on  that  day.  She 
was  alone  with  him  for  a  few  minutes  in  the 
parlor.  I  was  in  the  dining  room  at  the  time, 
and  as  soon  as  I  had  taken  tea,  I  repaired 
thither.  Mrs.  Surratt's  former  cheerfulness  had 
left  her.  She  was  now  very  nervous,  agitated 
and  restless.  On  my  asking  her  what  was  the 
matter,  she  replied  that  she  was  very  nervous, 
and  did  not  feel  well.  Then  looking  at  me,  she 
wanted  to  know  which  way  the  torchlight  pro 
cession  was  going  that  we  had  seen  on  the 
Avenue.  I  remarked  that  it  was  a  procession 
of  the  arsenal  employees,  who  were  going  to 
serenade  the  President.  She  said  thatshe  would 
like  to  know,  as  she  was  very  much  interested 


APPENDIX. 


421 


in  it.  Her  nervousness  finally  increased  so 
much  that  she  chased  myself  and  the  young 
ladies  who  were  making  a  great  deal  of  noise 
and  laughter,  to  our  respective  rooms. 

When  the  detectives  came,  at  three  o'clock 
the  next  morning,  I  nipped  at  her  door  for  per 
mission  to  let  them  in. 

"For  God's  sake,  let  them  come  in  !  I  expected 
the  house  to  be  searched,"  said  she. 

When  the  detectives  had  gone,  and  when  her 
daughter,  almost  frantic,  cried  out : 

"Oh,  Ma!  just  think  of  that  man's  (JohnW. 
Booth)  having  been  here  an  hour  before  the  as 
sassination  !  I  am  afraid  it  will  bring  suspi 
cion  upon  us." 

"Anna,  come  what  will,"  she  replied,  "I  am 
resigned.  I  think  that  J.  Wilkes  Booth  was 
only  an  instrument  in  the  hands  of  the  Al 
mighty  to  punish  this  proud  and  licentious 
people." 

LOUIS  J.  WEICHMANN. 

Sworn  and  subscribed  before  me  this  llth  day 
of  August,  1865. 

CHAS.  E.  PANCOAST, 

Alderman. 


AFFIDAVIT  CONCERNING  CERTAIN  STATE 
MENTS  MADE  BY  DR.  SAM'L  A.  MUDD, 
SINCE  HIS  TRIAL. 

CAMP  FEY,  WASHINGTON,  D.  C., 

August  22,  1865. 

BRIO.-GEN.  JOSEPH  HOLT, 
Judge  Advocate  General,  U.  S.  A.  : 

SIR — I  am  in  receipt  of  your  communication 
of  this  date,  in  which  you  request  information 
as  regards  the  truthfulness  of  certain  state 
ments  and  confessions  reported  to  have  been 
made  by  Dr.  Mudd  while  under  my  charge,  en 
ron'e  to  the  Dry  Tortugas. 


In  reply,  I  have  the  honor  to  state  that  my 
duties  required  me  to  be  constantly  with  the 
prisoners,  and  during  a  conversation  with 
Dr.  Mudd,  on  the  22d  of  July,  he  confessed 
that  he  knew  Booth  when  he  came  to  his 
house  with  Herold,  on  the  morning  after  the 
assassination  of  the  President;  that  he  had 
known  Booth  for  some  time,  but  was  afraid  to 
tell  of  his  having  been  at  his  house  on  the  15th 
of  April,  fearing  that  his  own  and  the  lives  of 
his  family  would  be  endangered  thereby.  He 
also  confessed  that  he  was  with  Booth  at  the 
National  Hotel  on  the  evening  referred  to  by 
Weichmann  in  his  testimony;  that  he  came  to 
Washington  on  that  occasion  to  meet  Booth,  by 
appointment,  who  wished  to  be  introduced  to 
John  Surratt;  that  when  he  and  Booth  were 
going  to  Mrs.  Surratt' s  house  to  see  John  Sur 
ratt,  they  met,  on  Seventh  street,  John  Surratt, 
who  was  introduced  to  Booth,  and  they  had  a 
conversation  of  a  private  nature.  I  will  here 
add  that  Dr.  Mudd  had  with  him  a  printed 
copy  of  the  testimony  pertaining  to  his  trial, 
and  I  had,  upon  a  number  of  occasions,  re 
ferred  to  the  same.  I  will  also  state  that  this 
confession  was  voluntary,  and  made  without 
solicitation,  threat  or  promise,  and  was  made 
after  the  destination  of  the  prisoners  was  com 
municated  to  them,  which  communication  af 
fected  Dr.  Mudd  more  than  the  rest;  and  he 
frequently  exclaimed,  "  Oh,  there  is  now  no 
no  hope  for  me."  "  Oh,  I  can  not  live  in  such 
a  place." 

Please  acknowledge  the  receipt  of  this  letter. 

I  am,  General,  very  respectfully, 

Your  obedient  servant, 
GEORGE  W.  DUTTON, 

Oapt.  Co.  C,  IQth  Reft  V.  R.  G,  corrfdg  Guard. 

Sworn  and  acknowledged  at  Washington, 
D.  C.,  this  23d  August,  1866,  before  me. 

G.  C.  THOMAS, 
Notary  Public. 


DIAGRAM  OF   THE   STAGE. 

The  above  is  a  diagram  of  the  stage,  with  properties,  as  it  stood  at  the  time  of  the  assas 
sination. 

The  number  of  persons  required  upon  the  stage  during  the  performance  is  as  follows:  19 
actors  and  actresses,  4  scene-shifters,  1  stage  carpenter,  1  assistant  stage  carpenter,  1  property 
man,  1  gas  man,  1  (back)  door-keeper,  1  prompter,  making  a  total  of  29  persons  passing  and 
repassing  upon  the  stage  and  through  the  passages  and  green-room  which  connects  with  the 
stage  by  the  passage  through  which  the  assassin  passed. 


A— "Asa  Trenchard,"  (Mr.  Harry  Hawk.) 

B— Miss  Laura  Keene. 

C— Mr.  Ferguson. 

D— Gas  Man. 

E— Stage  Manager,  (Mr.  Wright.) 

F— Mr.  Wm.  Withers,  Jr.,  (Leader  of  Orchestra.) 

1— First  scene. 
2— Second  " 
3— Box  of  President. 
4— Door  to  box. 

6— Entrance  to  passage. 

7— First  entrance  to  right. 

8— Second      ' 

9— Third  "  " 

10— Fourth  "  " 

11— Back  door  to  alley. 


12— Scenery  in  pile. 

13— Door  to  dressing-rooms. 

14— Scenery  in  pile. 

15— Governor  to  gas-lights. 

16— Prompter's  desk. 

17— Scenery  in  pile. 

18— Center  door  in  scene. 

19— Fence,  with  gate. 

20— Martin-house. 

21— Set  dairy,  (12  ft.  by  12  ft.,  3  feet  deep.) 

22— Bench. 

23— Small  table  and  two  chairs. 

24— Covered  stairway  to  basement. 

25— Set  piece,  to  mask  center  door. 

2t>— Hole  in  the  wall,  to  fasten  door,  (3ft.  6  in.  from 

corner. ) 
27— Torn  place  in  carpet,  (two  feet  from  lower  box.) 


r.      STREET. 

D 


X 

— CEJ- 

THEATEf?. 


^KALLJL'Y. 


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*  \ 


E.      STREET. 


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I  OFF1C£ 


k 

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k 

Ul 

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K 

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D.    STRFFT. 

i  r 


REFERENCES. 

B— Herndon  House.     C — Vacant  lot  communicating  with  the  alley  of  the  Theater.     D — 
communicating  with  F  Street.     K. — Alley  by  which  Booth  escaped.     X — Restaurants. 


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